161 Wis. 598 | Wis. | 1915
The trial court held that the failure of James M. Pereles and Thomas J. Pereles to account for the moneys which they had received into their hands from the Robert Davies estate constituted, under the facts and circumstances shown, a violation of their duties as executors and a breach of their executors’ bond. This conclusion is based on the facts as found by the court that it was the purpose, intent, and understanding of the county court, as expressed in its judgment of February 28, 1901, and of the executors and their sureties on the bond, that James M. and Thomas J. Pereles should hold the funds constituting the trust estate created by the will of Robert Davies, deceased, in their capacity as executors until the payment and distribution thereof among the persons entitled thereto under the will. Con-cededly no part of the fund in controversy was ever paid to any of the persons beneficially entitled thereto under the trust. It is also undisputed that no bond was ever given and no appointment was ever made by any court of these executors as trustees of the express trust created by the testator. It is the contention of the appellants that the sureties on the executors’ bond are not liable for the loss of this trust fund devised to James M. and Thomas J. Pereles in trust, to hold, manage, care for, and invest and reinvest on good interest-bearing notes secured by mortgages on improved real estate in Milwaukee county for the designated beneficiaries. This claim is made on the grounds that on February 28, 1901, the county court ordered that the executors’ accounts be approved and allowed, and on that day also by decree directed the
The defense rests on one of the two grounds: either that the duties of the executors did not persist after the entry of the county court’s decree on February 28, 1901, or that before the termination of their executorship they erroneously assumed to perform the duties of such trustees under the direction of the county court without qualifying for the office.
It appears that, the testator nominated and the court appointed the executors, who duly qualified. They were also made the trustees by the will to carry out the testamentary trusts. They returned an inventory of decedent’s estate and received and took possession thereof as executors. They filed an account as executors, and petitioned the county court stating that they had administered the estate, prayed judgment that the account be allowed and that the residue of the estate in their hands be assigned. Upon due notice the account was examined and an order made by the court that the account be approved, allowed, and ordered to be recorded. The court rendered a decree on the day it approved and allowed the account which recites that the personal property of the estate remains in the hands of the executors as trustees for distribution, and thereupon ordered, adjudged, and decreed “that the said executors hold in trust the sum of twenty thousand (20,000) dollars” and to pay and distribute the net income of $12,000 thereof to Byron Y. Davies during his
“The statute (sec. 4025, Stats. 1898) obviously contemplates qualification of a testamentary trustee before his office as such shall commence, imposing upon him active duties. The formal assignment in this case of the property to the Goughs as testamentary trustees did not operate to change the title to the property. It was in them before the order, and it remained in them after that, no trustee having been appointed in their stead, notwithstanding they failed to qualify. Obviously, therefore, before a testamentary trustee has any active duties to perform, he must accept the trust in the manner contemplated by the statute, namely, by giving a bond as required by sec. 4025, Id.”
So in the instant case, in default of the executors qualifying as testamentary trustees they could not assume to perform any duties as trustees and they held the estate as ex
By the Court. — The judgment appealed from is affirmed.
