Dugan v. Knapp

105 Wis. 320 | Wis. | 1900

Bardeen, J.

The court below seemed to base its decision: upon-the theory that the probate court in Ohio had primary control of the trust, and that the courts of this state had no< jurisdiction to enforce it; relying upon Jenkins v. Lester, 131 Mass. 355. Without determining that question, there is another and better reason why this action cannot be maintained. The plaintiff’s assignment is general, and sets over to him, out of the income of the trust estate, a sum sufficient, to pay his judgment and interest. It does not cover any specific instalment due or to become due. It is simply the. assignment of a part of a fund in the hands of one not bound to consent to its being split up. The recent case of Skobis v. Ferge, 102 Wis. 122, passed directly upon the point here, involved. It was there said: “ The debtor has a right' to pay his debt in solido, and to refuse to be subjected to suits by several claimants; and no notice of the assignment of a part, of a debt, no matter how complete in equity as between the assignor and assignee, can destroy this right of the original debtor, without his consent.” This rule is amply supported by the authorities cited, and settles the question in this state adversely to the right of the plaintiff to sustain this suit. As against the plaintiff, the trustee is a mere debtor, and has a right to pay the instalments, as they become due, .in one sum. He cannot, against his will, be compelled to split them up. His right to refuse is absolute, and cannot be questioned by the courts, in absence of considerations of equity which do not appear in this case.

By the Court.— The order of the municipal court of Racine county is affirmed.