118 Wis. 409 | Wis. | 1903
The claim is made by appellant’s counsel that no trust was attempted to be created by the will; that the purpose of the testator was to bestow all of his estate upon his wife with full power to do therewith as she might see fit. That idea is urged upon us with much earnestness, and rules for judicial construction are invoked to support it. As we view the will we cannot reach the point where judicial construction is permissible. There is a tendency to commence dealing with testamentary instruments at once and almost as a matter of course upon their coming within the reach of judicial administration, as if construction thereof were necessary, or at least permissible, while the true rule is that construction never begins until uncertainty of sense is pretty clearly apparent. In this case there is no such uncertainty. Any attempt to construe the instrument would involve an effort to put meaning into the words contrary to their plain import, and to create uncertainty instead of the opposite. “I give, devise and bequeath to my beloved wife Mary, in trust for herself and my children, all of my estates,” etc., “with full power to continue my business if for the best interest of my estate.” What can be plainer than those words as regards the mere intention to create a trust, leaving out of view the question of the validity of the trust for the time being. The devise and bequest of property was not made absolutely to the
Counsel refer to Davies v. Davies, 109 Wis. 129, 85 N. W. 201, as if that were an authority for holding that when property is plainly given to one in trust for that one and others, with absolute power of control over the same as regards the manner in which the same shall be managed for the beneficiaries, the element of trust, though technical words in respect thereto be used to express it, may by construction be eliminated. That case is very far from supporting such idea. The Davies will was uncertain to the highest degree susceptible of being made certain by construction. There was no question about that. The difficulty was in reading out of the ambiguous instrument the idea which the testator had in mind when he signed it. The court did not reach the final result by discarding the element of trust. That was retained, and amplified, so to speak, by construction, so as to disclose some reasonable meaning within the legitimate scope of the testator’s language. No one, it seems, can read the decision there rendered and gather, legitimately, the impression that if Dr. Davies had left his property to his wife in trust for herself as well as the other objects of his solicitude mentioned in his will, there would have been any difficulty calling for con
Our views so far are in harmony with those of the learned circuit judge as regards whether the testator intended to create an active trust. In an elaborate opinion be pointed out in a general way what the testator purposed doing, all indi-eating such a trust, winding up with these expressions:
“In any event the business could be conducted, the estate managed, disposed of, its proceeds invested and divided— transactions likely to run through a series of years — with greater convenience and economy, in the name of a single per-son acting as trustee, than by the ten heirs acting individually, some of them for some years by guardians. Such were very probably some of the considerations which moved the testator*416 to invest Ms widow with the entire estate, In trust for hersel£ and my children,’ leaving the conditions of the trust to be determined afterwards, in the manner already indicated, as-future circumstances should seem to require.”
The last clause of the quoted language, looking at the opinion as a whole, must be construed as holding that the testator-left to the trustee broad discretionary authority as to how best to execute the trust in order that her administration might be adapted to changing circumstances, a very common, feature in a trust created by will for the benefit of the testator’s family, — a feature almost necessary to such a' trust.
Enough has been said, without going further into a detailed consideration of the learned judge’s opinion and decision, to show that he held that the will created a trust of an unmistakably active character. The legal title to the property was,, by appropriate terms, vested in the trustee, and she was empowered to control and manage it, as the circuit judge suggests, for the reason, among others, that it was of such a character that the interests of all concerned could be best subserved by avoiding a divided management. The statement of the learned court that the testator intended to vest in his wife-the title to the property with power to manage it, is, of course, a distinct decision that he intended to create a trust. It negatives any purpose that the beneficiaries should take the title - as tenants in common. Notwithstanding the very active-character of the trust thus indicated, the learned circuit judge-said that the trust was passive in character. It would not seem necessary to stop to more than suggest that a trust cannot be at the same time both active and passive. If it has-presently the essentials of one, that excludes the possibility of its having presently the essentials of the other. The prime requisite of a passive trust is that the trustee is made in form, a mere holder of the legal title, the right to the possession and the profits being in another. If there are any active du
“If any agency, duty, or power be imposed on the trustee, as by limitation to a trustee and bis heirs to pay the rents, or to convey the estate, or if any control is to be exercised, or duty performed by the trustee in applying the rents to a person’s maintenance, or in making repair's, or to preserve contingent remainders, or to raise a sum of money, or to dispose of the estate by sale, — in all these, and in other and like cases, the operation of the statute is excluded, and the trusts or uses remain mere equitable estates.”
The learned circuit judge reached the conclusion that the trust in question was a simple or passive trust, after deciding that it was an active trust, because, as one of the latter, it was void for uncertainty, using this language: “The words employed to express such trust fail to do so with such certainty and particularity as are necessary under the statutes which govern the subject,” referring, of course, to subd. 5, sec. 2081, Stats. 1898, which provides that express trusts may be created “for the beneficial interests of any person or persons, when such trust is fully expresed and clearly defined upon the face of the instrument creating it,” etc.
It is needless to say that if a person, in attempting to cre
The remaining question to be considered is whether the trust is void for uncertainty. The suggestion, in effect contained in the opinion of the learned circuit Judge, that the particular manner of executing the trust is not pointed -out and that such feature constitutes a fatal infirmity, cannot be sustained. Such matters are commonly left to the discretion of the trustee. The statute, subd. 5, sec. 2081, Stats. 1898, is substantially an enactment of the common law a's regards when equity will enforce a trust. It requires that the trust shall be fully expressed and clearly defined upon the face of the instrument creating it, in order that the court may deal with it if necessary. If the trust is so fully expressed and defined, all else may be left to the discretion of the trustee. Failure to fully comprehend and give effect to that has led to many adjudications seemingly controlled by the idea that trusts are things to be avoided if some reasonable ground can be found to do so, instead of being enforced if that can be done consistently with rules of law. The rule that prefers a construction of a will rendering effective an attempt to create a trust to one that will defeat it, and also prefers a construction that will sustain testacy to one that will create intestacy, applies just as strongly to testamentary trusts as to any other testamentary disposition of property. Modern decisions indicate a growing appreciation of the judicial duty to uphold testamentary dispositions of property, made through the medium of trusts, instead of searching for reasons for avoiding them, or dealing with them with any degree of disfavor. Judge RedKibld, in his work on Wills, vol. 2, p. 385, noted, at the time he treated the subject, that:
“The chief reason why courts, in the later cases, have felt reluctant to admit uncertainty as a ground for avoiding the formal disposition of property,' will he found in the very general feeling in all judicial tribunals, whether in this coun*420 try or in England, that the earlier decisions upon this point were, many of them, unreasonable and indefensible, and not a few of them verging very closely upon the ludicrous and the absurd.”
Courts, as a rule, bold that where there is no indefiniteness of beneficiaries to enforce the trust, and no indefiniteness of subject or object of the trust, the statute is satisfied, because in such circumstances, through its equity powers, the court can effectively deal with the matter. That idea can be found most frequently advanced and applied in respect to public trusts, where the rule of certainty governing private trusts was applied at least as to certainty of beneficiaries. Webster v. Morris, 66 Wis. 366, 371, 28 N. W. 353; McHugh v. McCole, 97 Wis. 166, 72 N. W. 631. The rule of the English cases as regards when a trust is stated with sufficient definiteness that a court of equity will enforce it, is substantially the imle laid down in the cases cited. It is when the object or purpose and the person are pointed out with fullness and definiteness. All else may properly be left to administrative discretion. Pierson v. Garnet, 2 Brown’s Ch. 226; Robinson v. Waddelow, 8 Sim. 134; Gloucester v. Wood, 3 Hare, 131. In Roe v. Vingut, 117 N. Y. 204, 22 N. E. 933, it was in effect held that certainty of general scheme, and of the person or persons to be benefited, satisfies the statute. That will be easily recognized as the rule laid down by this court in the cases above cited. Peckham, J., said:
“Upon such perusal [of the will], if a general scheme can be found to have been intended and provided for in the instrument, and such general scheme is consistent' with the rules of law, and so may be ’declared valid, it is the duty of courts to effectuate the main purpose of the testatrix.”
In that case the court rested from searching for essentials-of certainty upon discovering a clear and fully expressed purpose to create a trust, the subject of the trust, the object thereof, and the persons to be benefited. In Vernon v. Ver
Testing the trust in question by what has been said, what is there about it that is not fully expressed and clearly defined? All the essentials of fullness and definiteness are easily discovered. The subject of the trust, the property, is described as all of the estate of the testator, both real and personal. The purpose or object of the trust is likewise clear. It is to enable one person, the trustee, to control, care for and in all things administer the property, and devote the same to the benefit of others. The persons to be benefited are unmistakable, being the widow and all the children of the testator.
It is suggested that the trust is indefinite in -that the time when it is to be terminated is not mentioned. The mere fact that no limitation to the existence of the trust is stated is not an element of indefiniteness under the statute since the power of alienation is not unduly suspended. The trustee is empowered to sell the property at any time, so there is no infirmity as regards suspending the absolute power of alienation. If the trust were necessarily perpetual as to the converted fund, that would not offend against any law. Becker
Thus it will be seen that, when we put aside as immaterial the suggestion that no time is mentioned in the instrument under consideration for the termination of the trust, and the
The learned counsel for appellant claims that if the trust is to be sustained, as we have indicated that it must be, the appellant is entitled to administer it. That matter does not appear to he before us. The record shows that appellant resigned her position as trustee to the proper county court; and that in due form of law pursuant to see. 4027, Stats. 1898, such court appointed as her successor Christian Walter, and he filed his bond and accepted the trust. That operated, by force of the statute, to vest in him the legal title to the trust property, the same as if his name were inserted in the order of the county court assigning the property to him as trustee in the first instance, in the terms of the will, instead of to appellant.
The result is that the judgment must be reversed and the cause remanded to the trial court with directions to enter a decree establishing the legal title to the property involved in Christian Walter as trustee for the appellant and the children of the testator for the purposes mentioned in his will, in harmony with the order of the county court assigning his estate in trust.
By the Court. — So ordered. The taxable costs of both parties in this court will be paid out of the trust estate.