87 Wis. 449 | Wis. | 1894
The will in question was admitted to probate by the county court of Milwaukee county. The estate has oeen fully and finally settled in that court. Nothing remains but for the trustees to execute the trust as directed by the will. The jurisdiction of that court, however, is expressly extended by statute “ to all cases of trusts created by will admitted to probate in such court.” Sec. 2443. But such jurisdiction of the county court is not made exclusive. It is to be remembered that the circuit courts have original jurisdiction in all matters, civil and criminal, within this state, not excepted in the constitution nor prohibited by
The New York statutes, unlike ours, in addition to the sections cited, also place an express limit on the power of the suspension of the ownership of personal property longer than two lives in being. 4 R. S. N. Y. 2516, sec. 1. This difference in the statutes of the two states has been repeatedly recognized by this court. De Wolf v. Lawson, 61 Wis. 414; Scott v. West, 63 Wis. 581, 582; Webster v. Morris, 66 Wis. 382. The same distinction has been observed by the supreme court of Minnesota, citing numerous New York cases. In re Tower's Estate, 49 Minn. 371. In addition to the statute so limiting the power of the suspension of the ownership of personal property, the New York statutes expressly declare that: “ In all other respects limitations of future or contingent interests in personal property shall be subject to the rules prescribed in the first chapter of this act in relation to future estates in lands.” 4 R. S. N. Y. 2516, sec. 2. That includes, not only uses and trusts, but the whole field of real property and the nature, qualities, and alienation of estates therein. The section last quoted is followed by others prescribing the manner in which “an accumulation of the interest of money, the produce of stock or other income or profits arising from personal property, may and may not be secured.” Id. secs. 3-5.
The question presented has elicited much discussion in New York. In speaking of these statutes in Graff v. Bonnett, 31 N. Y. 13, Hogeboom, J., said, in behalf of the court, that: “ It is undeniable that if this were an interest in a trust for the receipt of the rents and profits of lands
Thus it appears that, notwithstanding the statutes of New York so making the statutes respecting real estate also applicable to personal property, yet the highest court of that state verj7 reluctantly reached the conclusions mentioned, and then only by a divided court. In this state we have no statute making the chapter on uses and trusts, or any part of it, applicable to personal property. This distinction was not observed by our late Brother Tayloe in Arzbacher v. Mayer, 53 Wis. 380; and the question here considered was not there involved. It would seem that
We must hold that the income arising from the personal property so held in trust was assignable. Under our statutes, we are satisfied that it was competent for the wife to take title or acquire the equitable right to such income from her husband, especially as it is-in the line of the bequest in the testator’s will, and made upon the agreement of the wife to properly care for, educate, and maintain each and both of the infant children of her and the plaintiff. Wheeler & W. Mfg. Co. v. Monahan, 63 Wis. 198; Gettelman v. Gitz, 78 Wis. 439; State v. Wallace, 67 Iowa, 77. We must hold that the written instrument in question was a valid assignment of the income of the personal property held in trust, which has accrued or may accrue during the life of the plaintiff.
By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.