215 Wis. 54 | Wis. | 1934
The appellant trustees contend: (1) That the court was without jurisdiction to declare a trust for want of jurisdiction of the subject-matter, and that the judgment purporting to establish the trust is therefore void; (2) that their trust is therefore extra-legal and they were not bound to make their investments according to the statute and are not required to account for cash but only for the securities held; (3) they also contend that they are not required to account to the American. Legion Posts at all, although they do not suggest to whom, if anybody, they are accountable. They further contend (4) that the several Posts had knowledge of and consented to their precise method of investing the funds, and are estopped to refuse acceptance of the securities or their avails in lieu of cash, if they are accountable to them.
“Under no circumstances can a trustee claim or set up a claim to the trust property adverse to the cestui que trust, nor can he de^ his title.”
Many cases are cited to the first proposition and to the latter. Von Hurter v. Spengeman, 17 N. J. Eq. (2 Green.) 185, is cited in addition to the Associate Alumni Case, supra.
(2) We are of opinion that from the above-it follows, as held by the learned circuit judge, that the funds received by the trustees should have been invested in such securities as sec. 231.32, Stats., designates. Estate of Allis, 123 Wis. 223, 101 N. W. 365; Will of Leitsch, 185 Wis. 257, 201 N. W. 284; Estate of Dreier, 204 Wis. 221, 235 N. W. 439; Estate of Fouks, 213 Wis. 550, 252 N. W. 160. It is clear that the fund was not so invested, and the trustees must pay over to the several Posts in cash unless the Posts are estopped by their conduct from accepting the securities in which the trustees have invested. It is to be borne in
(4) The learned trial judge found that “there was no waiver of the right to object on the part of the plaintiffs [American Legion Posts] or any of them to the investment of the portions of the trust fund by the trustees in the illegal investments . . . nor were the plaintiffs or any of them estopped to object to such investments.”
The trustees contend that this finding should be set aside as not supported by the evidence. We do not regard it as “contrary to the great weight and clear preponderance of the evidence” and therefore cannot disturb it. While it is true that some of the Posts accepted as advancements some securities in lieu of cash, no mention was ever made to them that the bonds so accepted did not satisfy the statutory requirements; or that the statute imposed any requirements as to the nature of the investments to be made. It does not appear that any of the members of the Posts knew of the statutory requirements. A waiver is the voluntary relinquishment of a known right. No action was taken by any of the Posts. A committee appointed by Budlong Post conferred with one of the trustees about investment of the funds, and reported to the Post that the “trustees [appellants] are confident of the security of the fund and the Legion need not worry for its interest in the fund.” The matter rested there as to this Post. It does not appear that any action whatever respecting the investment of the
By the Court. — The judgment of the circuit court is affirmed.