156 Wis. 72 | Wis. | 1914
The question raised by the demurrer of the defendant Kuolt is whether he succeeds to the execution of the several trusts set out in the respective complaints by virtue of his having taken charge of the property and business of the Citizens Savings & Trust Company pursuant to the laws of the state. If he does, it must be by reason of some statutory provision, either express or implied, for, in the absence -of such statutory provision, a receiver does not take title to property held in trust. Le Roy v. Globe Ins. Co. 2 Edw. Ch. 657; High, Receivers (4th ed.) § 444; 5 Thompson, Corp. (2d ed.) § 6602. Neither does a trustee in bankruptcy. 1 Perry, Trusts (6th ed.) §§ 58, 345. Nor an assignee under a voluntary assignment for the benefit of creditors. 5 'Oyc. 566; 1 Perry, Trusts (6th ed.) § 336. So whether we regard the commissioner of banking as a receiver, trustee, or as-signee, he does not succeed to the execution of the trust in question unless he does so by force of statute.
A careful examination of the laws upon the subject fails to disclose any such statutory provisions, either express or
Of course upon taking possession the commissioner of banking holds all the property and business of the corporation, including trust property, for a reasonable time until new trustees can be appointed to take charge of and execute the various trusts. And while he so holds the trust property, it is his duty to conserve and protect it as far as possible until new trustees can be appointed.
No formal action for the appointment of new trustees is necessary. The cestuis que trustent may by notice and motion apply to the court for the appointment thereof; or the commissioner of banking may himself upon notice move for their appointment. To do so would become his duty under the statute if the cestuis que trustent unreasonably delayed to make application, for he is charged with the obligation of winding up the trust business of the insolvent corporation. In the present case the complaints may be considered petitions or motions addressed to the court for the purpose of securing the appointment of new trustees. Form is not the essence of the matter.
Upon the appeal of the Citizens Savings &■ Trust Company it is clear the circuit court properly overruled its several demurrers. When the commissioner of banking took possession of its property and business it became, for the time being at least, incapable of acting as trustee, and it could become capable of resuming such duties only upon being allowed to resume its general business. In the instant case the ten days within which under sec. 2022, sub. 9, it could apply to the circuit court for an order enjoining further proceedings, have
By the Gowrt. — Each order sustaining the demurrers of the defendant Kuolt is reversed; each order overruling the demurrers of the Citizens Savings <& Trust Company is affirmed ; and the causes are remanded with directions to overrule each demurrer of the defendant Kuolt and for further proceedings according to law.