64 Wis. 210 | Wis. | 1885
If the county court, in the exercise of its equitable powers, may lawfully terminate a testamentary trust for the support and maintenance of any person during life while such beneficiary is still living, the power should be cautiously exercised, and no such trust should be thus terminated without a full hearing in some proceeding to which all persons interested in the trust fund are parties, nor without ample security being required that the beneficiary should never want for maintenance, if the trust fund would have been sufficient therefor.
It is clearly manifest from the will of Mrs. Goodal that she intended to pledge all the residue of her estate, after the other trusts created therein were executed, to the support and maintenance of Cyprian and Mary G. Chandler during their respective lives, and to place each of them beyond the reach of want while he or she survived, and while any portion of her estate should remain unexpended. It is quite immaterial that Mary has needed no assistance from the estate since her marriage, or that her husband is now entirely able and willing to support her. In the vicissitudes of human affairs she may come to want. Should such a misfortune overtake her, the intention of the testatrix was to provide a fund to which she might again resort for her maintenance.
Such provisions are frequently made by testators for weak-minded or unthrifty and improvident persons, who can easily be persuaded to release the provisions made in their favor. In such cases courts of equity will investigate closely, and hesitate long before giving full effect to such a release by terminating the trust. Indeed, they will not do so, and thus defeat the cherished purpose of the testator in
Mrs. Fox is not a party to this proceeding. We have nothing from her but her unexplained release. It is quite obvious that the court did not inquire into the circumstances under which it was executed, or whether it was a prudent or imprudent act. Conclusive effect seems to have been given to it, and the trust seems to have been terminated solely because she thus consented to its termination. It was a fortunate accident, rather than a material factor in the judgment of the county court, that the husband of Mrs. Fox has been and is now willing and able to support and maintain her. It would be a most pernicious and dangerous rule to allow testamentary trusts for the support of dependent persons to be absolutely terminated upon the mere consent of the beneficiaries, without regard to their capacity or the circumstances under which such consent was obtained, and without any guaranty against future adverse conditions.
Hence, assuming the power of the county court to terminate the trust on proper proceedings, we think three material errors intervened, either of which is fatal to the judgment. These are: (1) The failure to make Mrs. Fox a party to the proceeding; (2) the failure to investigate the circumstances: under which the release was executed, the capacity of Mrs. Fox, and whether or not the execution of the release was a judicious and discreet act on her part; and (3) the failure to' require security for the protection of Mrs. Fox, should she hereafter become indigent.
Whether any of these requirements might be dispensed with, were the trustee consenting to the termination of the trust, is not here determined. The trustee in a certain sense represents the testatrix. He was appointed by the testatrix to execute her intentions as expressed in the will; and so long
It has thus far been assumed that the court, on a proper case made, may terminate this trust in favor of Mrs. Fox before her decease; and further, that it may do so without the consent and against the. protest of the trustee. These are very important propositions, and we are not willing to determine either of them without further argument and investigation. The questions involved were argued to some extent by counsel, and have been somewhat considered by this court. But they are so important and far-reaching in their results that we feel justified in leaving them undetermined until they are more fully argued. Counsel are referred to Perry on Trusts, § 920, and cases cited in the notes, for adjudications bearing upon them. It is sufficient for the determination of the case before us that in any view error fatal to the judgments of the county and circuit courts has intervened.
By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded with directions to reverse that portion of the judgment of the county court which directs more than one half of the trust fund to be paid to the residuary legatees, and which discharges the trustee, but without prejudice to the right of the proper parties to renew the petition that the trustee be required to pay over the balance of the estate to the present petitioners, thus terminating the trust.
