117 Wis. 437 | Wis. | 1903
The essential facts appearing from the complaint are, in brief, that the defendant James O’Brien in February, 1877, and more than twenty years before the commencement of this action, went into possession of certain lands which had been devised to him by his father, subject to the payment of certain cash legacies which were specifically made a lien thereon by the will, and that he has ever since remained in possession thereof, claiming ownership under said will; that one of said cash legacies was in favor of the plaintiff’s intestate, and has never been paid; and that this action is brought to enforce the lien upon said lands created by the will. The sole question presented is whether the action is barred by the statute of limitations, and the respondent’s contention'is that the statute has never commenced to run, because the appellant James O’Brien has held the land as a trustee of an express trust, which has never been denied or repudiated. In support of this contention the respondent relies upon the cases of Powers v. Powers, 28 Wis. 659, Severin v. Bueckerick, 62 Wis. 1, 21 N. W. 789, and Wier v. Simmons, 55 Wis. 637, 13 N. W. 873, holding, in effect, that where one holds land subject to a charge thereon in favor of another, created by will or deed, he holds it in trust to the extent of such charge; and upon the cases of Sheldon v. Sheldon, 3 Wis. 699; Howell v. Howell, 15 Wis. 55; Spear v. Evans, 51 Wis. 42, 8 N. W. 20; Bostwick v. Estate of Dickson, 65 Wis. 593, 26 N. W. 549; Fawcett v. Fawcett, 85 Wis. 332, 55 N. W. 405, and Williams v. Williams, 82 Wis. 398, 52 N. W. 429, holding, in effect, that the statute of limitations has no application to the case of an ex
“All trusts arising otherwise than by contract inter partes, trusts created by operation of law, whether implied, resulting, or constructive, and all trusts founded in contract having some of the elements of express trusts and properly referred to. as such, though not belonging to that species of express trusts cognizable only in a court of equity, are subject to statutes of limitation.”
It must therefore be considered as settled in this state that a trust which is to be held exempt from the operation of the statute must be (1) an express trust and (2) a technical and continuing trust, cognizable only in a court of equity; and the question is whether such a trust is disclosed in the complaint before us.
“(1) To sell lands-for the benefit of creditors; (2) to sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon; (3) to receive the rents and profits of lands and apply them to the use of any person during the life of such person or for any shorter term, subject to the rules prescribed in the last preceding chapter; (4) to receive the rents and profits of lands and to accumulate the same for the benefit of any married woman, or for any of the purposes and within the limits prescribed in the preceding chapter; (5) 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 prescribed in this title.”
A slight addition made to the fifth subdivision in the revision of 1878 is immaterial here. There are only two of the above subdivisions under which it can be claimed for a moment that the present case falls, namely, the second and fifth. The second must be at once rejected, because the will does not direct the legatee to sell, mortgage, or lease the lands. Therefore there can be no trust for that purpose. But the claim is seriously made that it may be a trust for the beneficial interest of the legatee, fully expressed and clearly defined under the fifth subdivision. If this claim is to be sustained, certainly we shall have to materially enlarge our conceptions of express trusts in real property. It is to be remembered that the defendant James O'Brien was never the executor of his father’s will, as the defendant was in the case of Powers v. Powers, 28 Wis. 659, and hence that the trust relationship existing between executor and legatee never arose. He was simply a devisee of real estate, upon which was imposed a money charge or lien in favor of a third person. He was not required by the will either to sell the real estate and pay the charge out of the proceeds, or to. use it in
The case of Bostwick v. Estate of Dickson, 65 Wis. 593, 26 N. W. 549, was much relied upon by the respondent, but this was a case of express trust created by contract in lands under the fifth subdivision aforesaid, and hence can have no
It is not to be denied, however, that the language of the opinion in Williams v. Williams, 82 Wis. 393, 52 N. W. 429, is substantially in accord with the respondent’s contention in this case, and at variance with the conclusion we have here reached. The case was one of partition between two brothers to whom lands had been devised jointly, subject to a legacy in favor of another brother, and subject, also, to the life estate of the widow in said lands. The widow was executrix of the will, and went into possession of the land there
By the Court.' — Order reversed, and action remanded with directions to sustain the demurrer to the complaint.