146 Wis. 556 | Wis. | 1911
The following opinion was filed June 1, 1911:
The plaintiff claims the right to recover in this' action upon legal title to the land in question from the Swedes Iron Company through Eber B. Ward and his ex-
There is nothing whatever on the face of the deeds to. Ward to indicate any purpose of a trust. On the contrary, the title is conveyed to Ward, his heirs and assigns, to have and to hold forever. It is unnecessary to cite authority in this state to the effect that in order to impeach a deed absolute •on its face the- testimony must be clear and convincing. As
The trust claimed to have been proved is an express trust
“For the beneficial interests of any person or persons, when such trust is fully expressed and clearly defined upon, the face of the instrument creating it, subject to the limitations as to time and the exceptions thereto relating to literary and charitable corporations prescribed in this title.”
The record is barren of competent evidence showing compliance with this statute. There is no sufficient evidence that any trust was declared by an instrument, much less that the trust was fully expressed and clearly defined upon the face of the instrument creating it. True, the trust need not necessarily be embraced in one instrument. It may be made up of several, but they must be so connected and in such form, when construed together, as to comply with the statute without the aid of oral evidence.
As we have seen, the resolution does not appear to have been signed by Ward, but even assuming for the sake of the argument that the resolution and letter of Ward are competent evidence, still they are not sufficient to meet the calls of the statute with reference to definiteness. It must be remembered that it is sought by this evidence to ingraft upon a deed, absolute upon its face, a trust, and this can only be done by clear and convincing evidence in writing. Fairchild v. Rasdall, 9 Wis. 379; Campbell v. Campbell, 70 Wis. 311, 35 N. W. 743; Krouskop v. Krouskop, 95 Wis. 296, 70 N. W. 475; Pavey v. Am. Ins. Co. 56 Wis. 221, 13 N. W. 925; Clarke v. McAuliffe, 81 Wis. 104, 51 N. W. 83.
Respecting clearness and definiteness, the evidence which is required to establish an express trust under the statute is well stated in Dyer’s Appeal, 107 Pa. St. 446, and I cannot do better than quote from that case:
“Do the two letters, taken together, constitute such a writing as will take the case out of the prohibition of the statute ? It must be conceded that they contain an admission of the*569 ■existence of a trust. But wbat trust ? "Wbo are tbe cesiuis que trustent ? . . . One of tbe letters speaks of selling tbe property and dividing tbe proceeds pro rata. But between whom? Just bere is tbe pincb of tbe'appellees’ case. Eor it is in vain tbat we look to tbe letters for an answer to these questions. To obtain it we must go outside tbe letters and supply tbe omissions by oral testimony. Tbe appellees refer witb confidence to tbe partition to sbow. tbat tbe trust is in. favor of tbe beirs of Bobert B. Bay; tbat tbe allotment to Bobert Bay was double in value tbe share of tbe other beirs. But all this appears by oral testimony, and tbe facts which tbe master reports as agreed upon only meet a portion of tbe difficulty. There is nothing in tbe facts admitted to raise and define tbe trust. It is but necessary to read tbe report of tbe learned master to see tbat be was compelled to rely to a considerable extent upon oral testimony to reach bis conclusions. And we can safely say that no decree could be made by a chancellor without such aid. It would be a decree composed of a species of judicial mosaic work, written evidence alternating witb oral • testimony. It needs but a moment’s reflection to see that if we allow this we would seriously impair tbe act of 1856. This we are unwilling to do.”
Ward’s letter is relied upon as tbe strongest evidence going to establish an express trust, but a careful examination of it will show tbat it is not siifficiently definite and certain, even when read in the light of tbe facts and circumstances surrounding its execution, to impeach tbe integrity of tbe deeds. It does not indicate tbe lands in question as tbe subject of tbe trust without tbe aid of parol evidence; it does not show witb fulness and certainty, as required by tbe statute, tbe purpose of tbe supposed trust. Eor wbat purpose convenience of conveyancing as stated does not appear. If tbe deeds were intended to be a trust, it is very singular tbat they should have been made in the form of absolute deeds. In fact tbe evidence tends to show tbat they were intended to be taken just as they were taken — absolute deeds, — and.tbat tbe arrangement between tbe parties respecting tbe relation of tbe parties to tbe property was to be settled by an instrument or
The other link in the chain of plaintiff’s title attacked by-respondents is the deed from Orren W. Potter, sole surviving-executor of the will of Ward, to the Rorth Chicago Rolling Mill Company and Burt and others as trustees, to each an undivided one-half interest. We have referred in the statement of facts to the paragraph in Ward’s will authorizing a sale of the property. The will was probated in Michigan, where AVard lived at the time of his death.' A duly authenticated copy of the will and probate thereof was recorded in the office of the register of deeds of Milwaukee county, Wisconsin. This was sufficient without probating the will in this state,, and was presumptive evidence of the authority of Potter as sole surviving executor to convey the land under the power of' sale contained in the will. Sec. 2295, Stats. (1898). The-power of sale contained in the will was a valid power in trust and authorized the executor to convey the title. Secs. 2102,. 2121, 2123, Stats. (1898); Ford v. Ford, 70 Wis. 19, 33 N. W. 188; Crowley v. Hicks, 72 Wis. 539, 40 N. W. 151.
It is further argued by respondents that since the power-was given to three executors one could not execute it. But the statutes both in Wisconsin and Michigan provide that the-sole surviving executor can rightfully execute the power. Sec. 2137, Stats. (1898); 2 Howell’s Ann. Stats. Michigan,. § 5628.
The evidence shows that the plaintiff had at least an undivided interest in the property in dispute and was entitled to possession against all persons except its cotenant. Hardy v. Johnson, 1 Wall. 371; Newman v. Virginia, T. & C. S. & I. Co. 80 Fed. 228; Dorlan v. Westervitch, 140 Ala. 283, 37 South. 382; Newman v. Bank of California, 80 Cal. 368, 22 Pac. 261; Robinson v. Roberts, 31 Conn. 145; Sowers v. Peterson, 59 Tex. 216; Hutchinson v. Chase, 39 Me. 508; Sherin v. Larson, 28 Minn. 523, 11 N. W. 70; Horner v. Ellis, 75 Kan. 675, 90 Pac. 275; Gilbert v. Auster, 135 Wis. 581, 116 N. W. 177; Kent v. Agard, 24 Wis. 378.
The rule in this state, before changed by statute, doubtless was that in an action of ejectment, upon claim of the whole title, plaintiff could not recover an undivided part. Allie v. Schmitz, 17 Wis. 169; Riehl v. Bingenheimer, 28 Wis. 84. But the statute was altered by ch. 117, Laws of 1871, which change is embraced in sec. 3077, Stats. (1898), and under such change plaintiff, although claiming the whole, may recover an undivided interest.
Other questions discussed by appellant do not require treat
By the Court. — The judgment of the court helow is reversed, and the cause remanded for a new trial.
A motion for a rehearing was denied October 3, 191T.