130 Wis. 543 | Wis. | 1907
The question presented by'the demurrer is that which was suggested but not decided in the case of Chicago & N. W. R. Co. v. McKeigue, 126 Wis. 574, 105 N. W. 1030, where an independent action in equity was brought to enjoin the prosecution of the present action at law, and held not to be maintainable because the facts alleged could be set up as an equitable defense in this action. The question is thus fairly stated by the respondent:
“Is the settlement made by the defendant with Johanna Murphy, sole surviving heir at law of Broderick, deceased, prior to administration, binding upon the administrator subsequently appointed, when the asset involved in the settlement is not needed by the administrator for creditors or ex*546 penses of administration, and wben tbe asset involved in tbe settlement, if recovered by tbe administrator, will go to said Johanna Murphy?”
We think this question must be answered in tbe affirmative. An executor or administrator is invested with tbe legal title to tbe personal property of tbe estate, but be bolds that title charged with tbe duty of managing and disposing of tbe same in accordance with tbe provisions of tbe will or of tbe law. His duties are trust duties. In all essential respects be is regarded in courts of equity as a trustee. 2 Woerner, Adm’n (2d ed.) §§ 383, 500. In tbe broad sense of tbe word a trustee is one “in whom some estate, interest, or power in or affecting property is vested for tbe benefit of another.” Hill, Trustees, 41. In this sense tbe term includes executors, administrators, guardians, receivers, trustees in bankruptcy, factors, bailees and agents, and all persons vested with tbe title or control of property and charged with fiduciary duties in relation thereto for tbe benefit of another. Id.; 1 Lewin, Trusts (1st Am. ed.) 490. This is familiar law. Executors, administrators, and guardians are frequently called trustees and held to the responsibilities and duties of trustees by the courts. Gillett v. Gillett, 9 Wis. 194; Hutson v. Jenson, 110 Wis. 26, 85 N. W. 689; Abrams v. U. S. F. & G. Co. 127 Wis. 579, 106 N. W. 1091; Taylor v. Hill, 86 Wis. 99, 56 N. W. 738; In re Thurston, 57 Wis. 104, 15 N. W. 126; Foote v. Foote, 61 Mich. 181, 28 N. W. 90. It is well settled that beneficiaries of trust property, who are sui juris and whose rights are vested, may deal with and convey their equitable interests in the trust property, and tbe trustee will be required to convey the legal estate in accordance therewith if such action be not contrary to the terms of the trust. 2 Lewin, Trusts (1st Am. ed.) 684, 692. In case of an administrator the beneficiaries of the trust are the creditors of the estate and the heirs at law of the intestate. When all creditors have been paid the heirs at law are the sole bene
While the present action is brought to recover damages for the sufferings of the deceased and belongs technically to the estate, the essential relations of the beneficiary to the claim for damages where no creditors are interested are the same as
By the Gowrt. — Order affirmed.