26 N.W.2d 34 | Wis. | 1946
Lead Opinion
Petition filed October 16, 1944, for construction of the last will and testament of Frank M. Britt, deceased. This appeal from a judgment entered June 14, 1946, is by executors and certain beneficiaries; Winifred Coon, Lucy Tefft, Gertrude Crandall, and Willard P. McDermott, guardian ad litem of Mary Jane Seaman and Joan Seaman, minors.
Frank M. Britt died testate August 28, 1943. He was survived by three married daughters, two sons, Walter and LeRoy Britt, and two grandchildren, children of a deceased daughter. Britt, a sole trader, had owned and operated a retail coal business known as "F. M. Britt Coal Company," in Janesville, Wisconsin. He had also accumulated substantial real-estate holdings. The inventory of his estate showed real estate valued at $31,830 and personal property amounting to $55,810.82.
Among the personal assets was a checking account in the Merchants Savings Bank of Janesville, Wisconsin, carried in the name of "F. M. Britt Coal Company" and containing $15,586.69 at the time of the testator's death. The bookkeeper made deposits for the coal company in this account and wrote checks against the account to pay expenses of the company.
The testator had two other bank accounts. One was a checking account in the Rock County National Bank in the name of "F. M. Britt Coal Company," amounting to $1,377.90; the other, a savings account in the Rock County Savings Trust Company under the name of "Frank M. Britt." The checking account in the Rock County National *604 Bank, although in the name of the coal company, was used for real-estate transactions. The accounts receivable on the books of the coal company at the time of the testator's death totaled $24,704.61.
The will provided that the homestead be given to his son LeRoy Britt and wife, and that all the rest of his property be given to the Rock County Savings Trust Company and Winifred Coon, as trustees, to be managed by them for a period of ten years in accordance with certain specified uses and purposes. Those uses and purposes enumerated in the will which have a bearing on this action are set forth below:
"Fourth: All the rest, residue and remainder of my property, of whatever kind or nature, and wherever situated, I give, devise and bequeath to the Rock County Savings Trust Company of Janesville, Wisconsin, and Winifred Coon, as trustees, for the following uses and purposes:
"(1) It is my will that the business now conducted in the city of Janesville, Rock county, Wisconsin, by me under the name of F. M. Britt Coal Company, be conducted and operated from the time of my death for a period of ten years by my said trustees;
"(2) The said trustees shall have full charge, control and management of said business in conjunction with my sons, Walter J. Britt and LeRoy Britt;
"(3) It is my will that my sons, Walter J. Britt and LeRoy Britt, shall continue in said business, in active charge thereof, and as managers thereof, in conjunction with my said trustees, and that my said sons shall be paid for their services such salaries as shall be agreed upon between themselves and my said trustees with the approval of the county court of Rock county, Wisconsin;
"(4) I further direct that the net earnings of my said business shall be held intact and shall be invested and reinvested in such interest-bearing securities as are approved by the laws of the state of Wisconsin for the investment of trust funds, or may be, if it shall appear advantageous, invested in real estate, and shall be accumulated during said period of ten years;
"(5) At the end of said ten-year period, it is my will and I give and bequeath to my son Walter J. Britt, the sum of *605 twenty-five hundred dollars ($2,500) to be paid from the earnings and from said business, and I give and bequeath to my son, LeRoy Britt, the sum of twenty-five hundred dollars ($2,500) to be paid from the earnings of and from said business; said payments may be made in cash or securities, or real estate, at the option and election of said Walter J. Britt and LeRoy Britt;
"(6) At the end of said ten-year period, it is my will and I direct that the trust herein created as to said business shall terminate and cease, and my said trustees are hereby authorized and directed to convey and transfer all of said business, together with the land upon which said business is situated, together with all equipment thereof, and all equipment which said trustees may have purchased for the proper operation of said business, together with all earnings, accounts receivable, and any and all other property belonging to said business, except the sum of five thousand dollars ($5,000) hereinbefore mentioned, to my sons, Walter J. Britt and LeRoy Britt, to each of them equally, and I give, devise and bequeath to my said sons, Walter J. Britt and LeRoy Britt, to each of them an undivided one-half, share and share alike, the said business together with the land upon which said business is situated and all equipment, machinery and other property belonging thereto or appurtenant thereto or a part thereof;
"(7) I direct that as to all other property devised by me to my said trustees, that the same shall be held by my said trustees, rented, repaired and conducted in an advantageous manner for my estate, and I give unto my said trustees full power and authority to sell any or all of the real estate belonging to said trustees, other than the said coalyards, at any time that a sale thereof may be deemed advantageous and to the best interests of my said estate, subject however to the approval of the county court of Rock county, Wisconsin;
"(8) I direct that the income from said trust, other than that derived from my said business, shall be kept intact and shall be invested and reinvested in such interest-bearing securities as are approved by the laws of the state of Wisconsin for the investment of trust funds, or in real estate if it shall appear at the time to be more advantageous for investment, and that my said trustees shall annually, subject to the approval of the county court of Rock county, Wisconsin, distribute of said income the following amounts: To my daughters, *606 Lucy Tefft, Gertrude Crandall, Winifred Coon, the sum of two hundred fifty dollars ($250) each; . . .
"(10) I direct that at the end of ten years from the date of my death, the said trust shall terminate and all trust property, together with any and all accumulations thereon that have not theretofore been distributed, shall be paid or transferred by my said trustees as follows:" (To each of his children an undivided one-sixth part thereof, and to the two grandchildren, an undivided one sixth thereof, share and share alike.) By the trial court's decision the accounts receivable and the checking account in the Merchants Savings Bank of Janesville, Wisconsin, at the time of the testator's death are decreed to be a part of the "coal business" which is to be operated by the trustees for ten years and then conveyed by them to the two sons. The question thus raised is whether these items are to be included and considered as a part of the "coal business" which had been carried on during the lifetime of the testator under the name of "F. M. Britt Coal Company" or as a part of the general estate.
The term, "business," does not mean everything that a proprietor of a going concern may own at the time he disposes of it, even though it may be possible to trace some connection arising out of the operation of the business. The question of *607 what is included when the term "business" is used has been a source of some litigation, and a great variety of meanings appear from the cases in which that term has been considered as well as in texts by writers who have given some attention to questions which may arise from the use of the term. The word "business" varies from mere good will to an inclusion of other and more substantial elements. It has never become fixed and definite enough to carry the same meaning in every instance. The cases reviewed leave it to the context of the instrument in which the term occurs or other circumstances indicating an intention as to what is to be included or excluded.
In examining a will to discover a purpose, it is well to proceed in the reading of it as if the language is unambiguous.Benner v. Mauer (1907),
Here the testator has created a trust. The trustees are charged with the duty of carrying on all his affairs. They take his place in the control of his estate subject to the direction contained in the will. They are to conduct the coal business as well as manage the rest of his estate, keeping the netprofit from the operation of the coal business intact, as well as the net profit from the balance of the estate. By the trust arrangement he extends his business operation ten years. There are two sources of income to be considered, the coal business and all the other property, but these made up the estate treated with in the will. If money is used from the *608 "other property" accommodation must be made so that the net income of each section may be fairly ascertained. In other words, there must be a plan of accommodation between the two sections or funds followed in the discharge of administration of the trust, which will accommodate itself to the benefit of the "business" and the "other property" so that the net income of the business may be fairly ascertained. There is no room for a construction resulting in separating any cash or evidences of debt from the estate.
All his property, except his homestead "of whatever kind or nature, and wherever situated," he did "give, devise and bequeath to" the trustees for the certain uses and purposes set forth in the will.
A reading of the terms of the will with reference to the conduct of the coal business and the management of the balance of his estate by the trustees tells the obligation the testator has placed upon his trustees. He gives them his entire estate in trust and they are to transfer and assign his property in accordance with the terms of the will at the end of the ten-year period.
We do not deal further with the questions referred to in the briefs of counsel relating to the construction of the terms of the trust. It is well established that a court will not instruct a trustee as to questions which may never arise. Restatement, 2 Trusts, p. 806, sec. 259 (c). See also 2 Scott, Trusts, p. 1466, sec. 259, and cases cited; Will of Grotenrath (1934),
By the Court. — Judgment reversed. Cause remanded for further proceedings in accordance with this opinion.
The following opinion was filed February 17, 1947:
Dissenting Opinion
While the residuary clause of the will does set up a single trust and a single trustee, it is apparent to me from reading the clause that the testator intended two classes of property to be kept separate during the *609 period of the trust. The first is the business — whatever that may be held to constitute. The second is the property covered by paragraph (7) of the will. I come to this conclusion because the trust provisions require the trustees to keep the income of these two classes of property separate, and because there is ultimately a separate disposition of each class of property. While it is true that it is the business as it will have survived the risks of ten years' operation that is to be distributed under the terms of paragraph (6), it is also true that what constitutes the business at that time will to a considerable extent depend upon what the business comprises at the start of the period. If the trustees are to keep the portions of the estate separate, properly allocate the income and perform the other functions of their offices, it appears to me that they must know what constitutes the business at the outset of the trust. From all the facts and circumstances, I conclude that the bank account which the testator himself used as an instrument in his business is a part of his business, and that the other account involved belongs to the property disposed of under paragraph (7). The word "business" is not a word of art and I think should here be construed to include what the testator himself treated it as including, namely, the plant, accounts receivable, firm bank account, etc. Testator evidently considered that the business, as so defined, should thereafter be run upon its accumulated earnings, and that whatever remained at the end of ten years, be it large or small, be divided at the end of that period. The other property was to be kept separate and not to be used in aid of the business. Portions of its income were to be accumulated and disposition made as indicated in paragraph (7). It appears to me that any other construction puts it within the power of the trustees to control the ultimate devolution of the property by the manner in which they administer the estate. Finally, it appears to me that the construction which I adopt would render unnecessary any instructions to the trustees; that that adopted by *610 the majority of the court will almost necessarily result in a new proceeding or several of them by the trustees in order to solve administrative problems necessarily involved in the construction put upon the will by the court.
I am authorized to state that Mr. Justice FRITZ and Mr. Justice RECTOR join in this opinion.