On December 19, 1930, Edward John Kop-pelkam deposited with defendant the sum of $75,000 pursuant to a trust agreement executed by him. The agreement recites thаt donor “gives, delivers, assigns, transfers and sets over to the trustee in trust for the uses and purposes hereinafter prescribed” the sum of $75,000. The trustee is given the power to hold, administer, invest and reinvest, and otherwise handle the principal and interest of the trust fund, and to distribute the net income at convenient intеrvals, (1) to Lydia A. Kop-pelkam, wife of the donor, until the donor’s daughter, Gene: vieve, shall have attained the age of thirty years, if both shall *256 live as long as this; (2) from and after the attainment by the daughter of the age of thirty years one half of the income to Lydia and one half to' the daughter, Genevieve, until the death of either or both of them; (3) from and after the death of Lydia or of Genevieve, whichever shall first die, the net income to the survivor as long as she shall live; (4) from and after the decease of the wife and daughter the net income to be paid to the donor. The trust is made irrevocаble for a period of ten years unless the donor, his wife, and his daughter shall all die prior to that time, and in the absence of a revocation is to terminate upon the death of the last of the three beneficiaries of the trust. Upon such termination, disposition of the assets is provided for. Thе details of this disposition are immaterial here. The indenture has a provision that the trust may be revoked on or after December 10, 1940. The settlor died prior to this date.
It is contended by plaintiffs, (1) that the power of revocation after ten years makes this an invalid inter vivos disposition of property; (2) thаt since the instrument provides for the disposition of both principal and interest after the death of the donor, it is testamentary in character; and (3) that it is void for failure to satisfy the statute of wills.
There is no contention in this case that the trust agreement satisfies sec. 238.06, Stats., which prescribes the mannеr in which wills are to be executed so we shall address ourselves to the following issues :
(1) Whether the trust is invalid because it was established in part for the purрose of disposing of settlor’s property after his death;
(2) Whether the reserved right of revocation makes it an incomplete gift inter vivos, or an attempted testamentary disposition which to be valid must be executed in compliance with the statute of wills.
A testamentary disposition is one to tаke effect upon the . death of a person making the disposition, and as to which he
*257
has substantially entire control until his death. Restatement, Trusts, § 53. In
Templeton v. Butler, 117
Wis. 455, 458,
Plaintiffs’ contention is contrary to the doctrine of this court as expressed in
Warsco v. Oshkosh Savings & Trust Co.
In Restatement, Trusts, § 57 (1), it is said:
“Where by the terms of the trust an interest passes to the beneficiary during the life of the settlor, the trust is not testamentary merely because the settlor reserves a beneficial life estate or because he reserves in addition a power to' revoke the trust in whole or in part and a power to modify thе trust.”
It is pointed out by the comment to this section that the principle involved is that an interest is actually created during the lifetime of the settlor, and the mere fact that he can destroy or alter it does not make the disposition testamentary, although if the trust were not to arise until his death the dispоsition would be testamentary. See note, 73 A. L. R. 209.
Plaintiffs rely upon the case of Warsco v. Oshkosh Savings & Trust Co., supra. In that case the settlor delivered to the trustee a certificate of deposit pursuant to an instrument reciting that the “settlor hereby irrevocably directs and declares that the trustee shall henceforth stand possessed of said certificate,” etc. After providing for payment of the income to the settlor or at his direction during his life and directing* payment of the principal upon his death to a named beneficiary, there followed a paragraph obligating the trustee at any time on request of settlor to “turn over and pay tо him any of the moneys in its hands derived from the said certificate of deposit, without the consent of” the person named as the beneficiary after his death. After the death of the settlor, trustee delivered the balance of the corpus to the beneficiary in accordance with the terms of the trust. The administrator of the settlor's estate sought to recover this amount upon the theory that the trust was invalid. The trial court held the trust valid and dismissed thе action. The judgment was reversed by this *259 court and the trust held invalid because by its terms settlor could at any time demand the principal of the trust.' The vice was not the revocability of the trust, but the faсt that there was no alienation of the donor’s property in such a way as to cause a benefit to accrue to a cestui que trust unless prevented by a condition subsequent resulting from a lawful revocation of the trust. The court considered that the settlor had at all times such full dominion over the trust res, that hе could use it as he pleased, and that the trustee was a mere agent to hold the property. This being true, the agreement was held not to constitute a valid conveyance in trust.
It is expressly stated in the opinion that had the trust been merely revocable, it would have been valid. See also First Wis. Trust Co. v. Department of Taxation, supra, in which the holding is to the same effect, expressly relying on the Warsco Case, supra.
The soundness of the distinction in the
Warsco Case
is characterized as finespun by Prof. Scott in his work on Trusts, volume 1, page 343, and in an articlе in 43 Harvard Law Review, 532. It is also called to our attention that the case of
McEvoy v. Boston Five Cents Sav. Bank,
By the Court. — Order and judgment affirmed.