12 Wis. 2d 375 | Wis. | 1961
The department concedes that Samuel C. Wright in his lifetime and his estate thereafter were not liable, apart from the terms of the trust, for Alfred Wright’s support in the county hospital but the department says that the will set up the trust solely to supply Alfred’s comforts and necessities; his maintenance in the hospital is a comfort and a necessity to him; therefore the application of the trust fund to the expense of Alfred’s maintenance there carries out the purpose of the trust.
In re Estate of Treat (1948), 253 Wis. 527, 529, 34 N. W. (2d) 685, we said:
“In construing a will the most-important rule to be followed is, of course, the one which requires that the general intent of the testator, if not inconsistent with some established rule of law or public policy, . . . must govern.”
We know of no public policy to prohibit a person who is not liable for the support of a charity patient in a public institution to give to the patient extra comforts or luxuries or, at need, necessities which the institution does not furnish nor do we find a public policy to seize such gifts before the patient has received them.
Appellant relies principally on sec. 231.21 (2), Stats., to support its contention that the trust fund may be appropriated regardless of the intent of the testator. The pertinent part of that section is:
. . in case a beneficiary is an adult whose maintenance is not sufficiently provided for by the trust, who has become, or is unable to take care of himself the court having jurisdiction over the trust estate, may, if in his judgment the rights and interests of others in said trust, will not be thereby prejudiced, authorize and adjudge the appropriation and application of so much of the trust fund, or the income thereof, or the proceeds of the trust property, or the principal of such loans as are hereinafter provided for, as he may deem necessary or proper for the care, maintenance, or education of such beneficiary, to be used for said purpose, . . .” (Italics supplied.)
The county court did not file a written opinion supporting the order denying the department’s petition but it can hardly be supposed that the court overlooked that the right and interest of the Society would be prejudiced by the disposition of the fund which the department seeks. The court, too, might conclude that the terms of the will ought to be carried out and that the fund should remain intact in the trustee’s hands, available to meet extraordinary necessary or desirable expenses beyond the hospital’s ability or disposition to incur (for example, expensive medical services), or to meet the condition of a delivery of the fund to Alfred if he recovers his sanity. And to grant the department’s petition destroying the trust would destroy also Samuel C. Wright’s purpose to save his son from a pauper’s grave.
We have held frequently that in Wisconsin a right to make a will is a sacred and a constitutional right and that right includes a right of equal dignity to have it carried out. Will of Rice (1912), 150 Wis. 401, 136 N. W. 956, 137 N. W. 778; Estate of Ogg (1952), 262 Wis. 181, 186, 187, 54 N. W. (2d) 175.
In any event the county court did not exercise its power to appropriate the fund which, at the most, was a discretion
Whatever the interest which Alfred has in the trust fund, it is not such an interest which permits the fund to be appropriated for his support in the institution. In Estate of Boyle (1939), 232 Wis. 631, 640, 288 N. W. 257, the petitioner was the beneficiary. He attempted to have the court order the immediate use of the fund for the payment of his debts, contrary to the terms of the trust instrument. He contended that sec. 231.21(2), Stats., authorized such an order. In response we said:
“The petitioner cannot possibly place himself within reach of the provisions of sec. 231.21 (2), Stats. He has no interest which can be appropriated to him, no interest which can be sold, and nothing that can be used as a security for a loan.”
Respondent also refers us to Boyle v. Marshall & Ilsley Bank (1942), 242 Wis. 1, 4, 6 N. W. (2d) 642. There we held that in order to come under the provision of sec. 231.21 (2), Stats., the beneficiary must have an absolute and uncontingent interest in the trust estate.
So, here, Alfred’s interest has the same limitations as those in the two Boyle Cases and is not within the provisions of that statute.
Appellant calls our attention to sec. 231.11 (8), Stats., reading as follows:
“It shall be unlawful to limit or restrict in any manner whatsoever the use of real or personal property or the rent or income thereof, owned, possessed, or enjoyed by any person to the extent of depriving the state department of public welfare or county of legal settlement of its right to recover the actual per capita cost of maintenance furnished an inmate of any state institution, or any county institution, in which the state or county of legal settlement is chargeable with all or a part of the inmate’s maintenance.”
We conclude the order of the county court must be affirmed.
By the Court.- — -Order affirmed.