Sawtelle v. Ripley

85 Wis. 72 | Wis. | 1893

Winslow, J.

The plaintiff is in no way interested in the construction of the fifth paragraph of the will. If the bequest in trust therein contained is valid she takes nothing under it, and if it be void the money bequeathed thereby passes under the residuary clause of the will, and becomes a part of the residuum of the estate, in which she does not share. Hawk. "Wills, p. 40. . She was not therefore a proper party to bring an action for construction of the clause of the will in question, not being in any way interested in any possible construction thereof, either as executor, trustee, or cestui gue trust. Chipman v. Montgomery, 63 N. Y. 221; Bailey v. Briggs, 56 N. Y. 407. The executor Ripley, boweyer, could rightfully bring the action, and he having answered to the merits and praying the judgment of the court construing the fifth clause of the will, we see no substantial reason why a court of equity should not retain jurisdiction and pass upon the questions so affirmatively raised by the executor, especially as it is manifest that a judicial construction of said clause is imperatively necessary. We have concluded, therefore, to retain jurisdiction of the action on this ground.

A difficulty, however, arises which seems to us to render it necessary that another party should be before the court before final judgment should be passed upon said clause. Under said fifth paragraph of the will, if it be valid, Jack-man and Ripley were nominated trustees of a trust which was entirely distinct from the office of executor, and which might exist for years after their duties as executors had been performed. Jackman has declined to act as executor of the will, but he has not, so far as is shown, ever declined the trust created by said fifth paragraph, nor is it shown that there is any impediment to his executing said trust. Tainter v. Clark, 13 Met. 220; Wills v. Cowper, 2 Ohio, 124 (1 & 2 id. 312); Conklin v. Egerton's Adm'r, 21 Wend. 430; Clark v. Tainter, 7 Cush. 568. In this view, he is manifestly an essential party to an action wherein a construction of said paragraph is sought. Much may depend on his action either in accepting or declining this trust. It is a very serious question whether his declination may not render the execution of the trust impossible, because of the personal confidence reposed by the testator in the trustees whom he has named. 2 Perry, Trusts (4th ed.), secs. 721, 729.

We shall decline to pass upon the merits of the controversy until Mr. Jackman has been made a party to the action, and it be ascertained whether he accepts or declines the trust. The action will be remanded to the circuit court, with directions to cause Mr. Jackman to be made a party defendant, and to take such further proceedings as may be necessary to definitely ascertain whether or not he declines or accepts the trust, and then to proceed to judgment upon the merits. Inasmuch as this action is retained in court simply on the ground that the executor Ripley has prayed construction of the will, and the action has thus become practically on behalf of the estate, we have concluded that no costs should be taxed against respondent on this appeal, but they will be ordered to be allowed out of the estate.

By the OouH.— Judgment reversed and cause remanded-for further proceedings in accordance with this opinion, appellant’s costs to be taxed and allowed out of the estate.