49 N.W.2d 301 | S.D. | 1951
Respondent brought this action in forcible entry and detainer to oust appellant, the operating com
There is no dispute in the ultimate facts bearing on the main issue. Walter Widmann is the last survivor of the persons named in the Fred Widmann will to share in the rents and profits of the hotel property during the lifetime of each such person. Since our decision does not depend on which is proper of the two interpretations that have been given the trust provisions of the will, there is no- purpose in setting out here verbatim the lengthy will provisions nor the language of the interpretation placed on them by the final decree of the Widmann estate entered in 19-20. It serves our purpose fully to summarize.
The will directed that the executor “either as executor or trustee” have charge and management of the property and from the rents and profits make annual payments for life to each, the widow and a son Harry, with the surplus over such payments and cost of upkeep to be divided between the son Walter, who .appears in this action by his respondent trustee, and a daughter. It further provided that when the payments to the widow and Harry came to an end the trust created should terminate. The will then devised the “use, occupancy, enjoyment and income” of the property to Walter and the daughter jointly, or the survivor, for life, with the remainder to the children of Walter and the daughter.
There is no question in the case as to the rights of any annuitants or of the remaindermen. The dispute involves only Walter,—whether he should have been receiving the full rents and profits as a beneficiary under a trust or the full rents and profits as a life tenant free of a trust, after the payments to the widow and the son Harry came to an end. In our view of the case, as stated, this question is not decisive of the issues.
Mr. Spangler and successor trustees collected and distributed the profits from the property under the trust established by the final decree until May 16, 1949 when by an order of the circuit court this trust was terminated on a finding that the widow and the son Harry were both dead.
Not until about April 18, 1949, in so far as the record discloses, did any of the numerous lawyers or several judges who had occasion to deal with the trust, nor any of the beneficiaries nor any other person, ever question the propriety of the interpretation placed on the will provisions in the final decree. On April 18, 1949, however, Walter Widmann, then the sole person entitled to the profits of the property, made a voluntary assignment to respondent as trustee of his (Walter’s) “life estate” in the property; and shortly a petition was filed for the termination of the trust created by the will and the order of termination of May 16, 1949 was entered.
During the administration of the trust the trustee had with circuit court approval made a 15-year lease for the hotel with appellant, dated March 8, 1930. This lease was cut -short an:d superseded with a new 15-year lease dated May 14, 1941, the lease here involved. This lease was made after a hearing in circuit court on notice to all parties, and
The 1930 lease provided a maximum monthly rental of $900. The lease here involved, made in 1941, reduced the rent to $550 per month; and the trial court found the reasonable monthly rent as of the time of the trial to be $1,250.
The respondent trustee has no connection with the trust created by the will, but serves and appears in this action as trustee under the appointment of Walter who saw fit to transfer management of the life estate to respondent.
The hotel building was destroyed by fire in April of 1950; büt this circumstance in no way affects the issues presented in this case.
The facts relating to tender of rent accruing after notice to quit are not so clear in the record as the foregoing. By Finding of’ Fact V the trial court determined that appellant had tendered the rent each month as it came due and that respondent refused the tender. Not entirely consistent with this finding is Finding XXY that on occasions the rent was tendered later than the 1st of the month (when due) “in some instances by check and in some instances by cash.” We have no difficulty in reconciling the two Findings in the determination, supported by the evidence, that appellant consistently offered to pay rent during the period in question substantially according to the terms of the lease and that respondent consistently refused to accept payment without making objection to the time or manner of tender.
Respondent contends it was necessary for appellant not only to offer payment of rent but to keep the offer good by deposit under a statutory requirement. It is undisputed that no such deposit was made.
We believe the lease was valid as to the full 15-year term under the doctrine of res judicata as recognized in two
We recognize a conflict in the authorities but believe the better rule permits trustees to make leases beyond. the periods of their trusts if in so doing they give effect to the scheme and intent of the trustor. The two opposing views are well expressed in the opinion of the court and the dissent in Upham v. Plankinton, 152 Wis. 275, 140 N.W. 5, 48 L.R.A., N.S., 1004. The position taken by the majority of the Wisconsin court in this case is in our opinion sound and reasonable. Restatement, Trusts, § 189, Comments d and e; Scott on Trusts, § 189.2-189.4. At least one jurisdiction, California, has seen fit to reverse by statute the opposite rule adopted as case law in South End Warehouse Co. v. Lavery, 12 Cal.App. 449, 107 P. 1008. See 21 So.Cal.L.Rev. 260(1948). We hold untenable respondent’s contention that any lease extending beyond the duration of a trust is in contravention of the trust and therefore void under SDC 59.0316. If the lease in the case at bar came within the general purpose and scheme of the trustor it was in furtherance of the trust and valid. Our application of the doctrine of res judicata raises the presumption that all matters bearing on the length of the term of the lease, and its propriety in the trustor’s scheme, were duly urged and considered when the lease was approved.
On the question of tender of the rent we consider the case of Pittsburg Plate Glass Co. v. Leary, 25 S. D. 256, 126 N.W. 271, 31 L.R.A., N.S., 746, controlling. Respondent relies on SDC 47.0209 providing for extinguishment of an obligation by deposit of an offer. As explained in the Pitts-burg Plate Glass Co. case, however, we are not here concerned with the extinguishment of the obligation to pay rent but only one of the incidents of payment, that is preservation of the right to stay in possession. It is urged in respondent’s brief that the North Dakota case of Brown v. Smith, 13 N.D. 580, 102 N.W. 171, requiring a deposit, is controlling here. The statutes of North Dakota construed in the Brown case differ from our statutes and the case does not in our opinion alter the rule in the Pittsburg Plate Glass case recognizing
The judgment from which the appeal was taken is reversed.