183 Wis. 156 | Wis. | 1924
The following opinion was filed January 15, 1924:
The plaintiff does not seek to recover for the heirs the amount of $446 spent for funeral expenses, the sum of $500 paid to Lydia Hunter, nor the sum of $10 retained by the Oshkosh Savings & Trust Company for services, but only the balance paid over to Dora E. Putzke, $2,000 of which was invested in a house and lot described in the findings.
It appears from the evidence that at the time the trust agreement was executed the deceased gave in drafts $500 to each of his nine children except Lydia Hunter, leaving him the amount turned over to the trustee. He was desirous of disposing of all his property not needed for his own maintenance. The amount so needed he wanted to keep, and he also wanted to make disposition of what remain'ed at his death. His lawyer suggested a will, but he was opposed to wills because there was so much litigation over them. So
In the instant case the trust is not revocable at all, but its provisions are such that the settlor may, under the terms of the trust, demand every cent from the trustee, for the agreement provides that the trustee “shall at any time, on request of said Gust Warsco, turn over and pay to him any of the moneys in its hands derived from the said certificate of deposit without the consent of the said Dora E. Putzke.” In demanding all the money the trust would be executed according to its terms. A revocation implies the cessation and extinguishment of the trust, and when made operates to put an end to it, not to carry out its terms.
A valid trust implies a donor; a trustee, and a cestui que trust. The donor may be the'cestui que trust or at least one of the cestuis que trustent. But there must be an alienation of the donor’s property constituting the trust to the trustee and under such terms that when the trust is executed a benefit accrues to’ a cestui que trust unless prevented by a condition subsequent resulting from a lawful revocation of the trust. If the donor has full control and dominion over the trust property, so that according to the terms of the tfust he can use it as and when he pleases, the trustee becomes his mere agent to hold title to; the property, invest, sell, and collect income for him and pay as he directs. The
In the present case the only thing the donor parted with irrevocably, and that only in case of his death before the trust property was consumed, was that the remainder of the trust property should go as directed. But that was an attempted testamentary disposition of property and not made in pursuance of the statute.
The case is identical in its main facts with the case of McEvoy v. Boston Five Cents Sav. Bank, 201 Mass. 50, 87 N. E. 465. The court there said:
“The trust in this case may be considered first in reference to its effect on the property during her life, and then in reference to its effect upon what might remain after her death. The first statement of the trust by the assignor in the assignment is in these words: ‘Said trustee shall pay to me such moneys as I may demand of him at any time during my life until I have used the amount conveyed to him by me by this deed.’ This' gave' her the right to demand any part or the whole of the money at any time, for any use that she chose to1 make of it. It left her the sole beneficial owner of it, with an absolute power of disposition as long as she lived. As against her, therefore, the only practical effect of the instrument during her lifetime was to give the trustee a right to collect and hold the property until she should ask for it. Her rights as beneficial owner during her life were not limited in any material way. She could revoke the trust at any time, or she could demand and receive from the trustee all the money, at any time, under the trust, and then do with it what she chose. . . . The other part of the trust created by the instrument in the present case relates solely to the disposition of the property after the assignor’s death. It follows that the only material effect of the instrument was testamentary, and that it cannot be given effect under our statutes, which permit a testamentary disposition of property only by a duly executed will.”
The above statement is equally applicable to this case. When the distinction between the power to revoke a trust and the retention of the complete control of the trust prop
In Pietsch v. Marshall & Ilsley Bank, 164 Wis. 368, 160 N. W. 184, irrevocable trusts were created and the donor did not have full control and dominion over all the trust property as the donor in this case had.
The fundamental element of a trust is that the trust property, so long as the trust lasts, is irrevocably devoted to the benefit of certain specified persons called cestuis que trustent, of whom the donor may be one. 3 Bouv. Law Dict. 3328. Some one must by the execution of the trust be benefited in a manner or degree different from that which would have resulted had no trust been created. Hence an instrument whereby the donor retains or may retain the whole beneficial interest in the trust property by the execution of the instrument according to its terms constitutes no valid trust. Russell v. Webster, 213 Mass. 491, 100 N. E. 637. In such cases the so-called trustee is only the agent of the donor. And it has uniformly been held that a devise or bequest in trust which is subject to the future directions of the donor is void unless executed in conformity with the statute of wills. See note to Atwood v. Rhode Island H. T. Co. (275 Fed. 513) in 24 A. L. R. 177, and cases cited.
It follows from what has been said that no valid trust was created by the instrument and that the plaintiff is entitled to possess himself of the proceeds paid to the defendant Dora E. Putske except as previously stated, for the purpose of making distribution thereof according to law.
By the Court. — Judgment reversed, and cause remanded for further proceedings as indicated in the opinion and according to law.
A motion for a rehearing was denied, with $25 costs, on March 11, 1924.
