Allis' Will, In re
| Decision Date | 04 May 1971 |
| Docket Number | No. 264,264 |
| Parties | In re Last WILL and Testament of Mary S. ALLIS, Deceased. Paul M. KUDER et al., Trust Remaindermen, Appellants, v. FIRST WISCONSIN TRUST CO., Trustee, Respondent. |
| Court | Wisconsin Supreme Court |
This is an appeal from an order of the county court dismissing appellants' order to show cause why the final decree and judgment approving the final accounts and discharging the trustee of the trust established by the will of Mary S. Allis should not be vacated and reopened.
Steve Enich and Michael P. Stupar, Milwaukee, for appellants.
Shea, Hoyt, Greene, Randall & Meissner, Milwaukee, for respondent; Ralph M. Hoyt, Milwaukee, of counsel.
Mary S. Allis died on December 17, 1923, and by her will left the residue of her estate in trust, with income to her daughter Elizabeth Allis Kuder, for life; and the remainder to her daughter's children Paul M. Kuder and Elizabeth A. Braithwaite, the appellants in this action. The will names the First Wisconsin Trust Company, respondent herein, as executor and trustee. Appellants became twenty-one years of age on September 21, 1938, and February 24, 1940, respectively.
Elizabeth Allis Kuder Sawyer, the life beneficiary of the trust, died on May 20, 1965. Shortly thereafter, the court approved the account of the trustee and directed distribution of the trust assets to the remaindermen, the appellants in this appeal, and the termination of the trust. Following the distribution of the trust assets and on November 15, 1965, the court entered an order terminating the trust and discharging the trustee from further liability. All of these proceedings were had pursuant to due notice to the appellants.
It also appears that orders approving the accounts of the trustee for successive periods were entered on November 26, 1946, June 22, 1953, and September 11, 1962, after due notice to the appellants as remaindermen, and a hearing thereon, and that on at least one occasion one of the remaindermen appeared with counsel.
On May 21, 1968, three years after their mother's death and approximately two and one-half years after the trust had been terminated and the trustee discharged, the appellants procured an order requiring the trustee to show cause why the final decree and judgment in the estate should not be vacated and reopened, and why the order approving the accounts and discharging the trustee should not be vacated. The order to show cause was supported by an affidavit alleging fraudulent conduct on the part of the trustee.
On February 11, 1969, the trial court signed an order dismissing the order to show cause proceedings on the grounds of laches by the remaindermen. The order of the trial court was supported by a written decision.
On April 30, 1969, the remaindermen served notice of appeal. This court dismissed the appeal on the ground that it was not taken within the time prescribed by law. 1
On January 21, 1970, and within one year from the date of the order dismissing the first order to show cause, the remaindermen procured another order to show cause. The order denying the January 21, 1970 order to show cause is the subject of this appeal. This second order to show cause also directed the trustee to show cause why the final decree and judgment should not be vacated and reopened and the orders approving the accounts and discharging the trustee vacated.
The second order to show cause was supported by an affidavit alleging the same fraudulent conduct on the part of the trustee as alleged in the affidavit in support of the prior order to show cause. The affidavit also alleged that the dismissal of the prior order to show cause dated January 29, 1969, was procured by fraud upon the court, and that the trial court's decision on the first order to show cause was in error.
The alleged new grounds for relief in the affidavit in support of the second order to show cause are a series of allegations attempting to establish that the order dismissing the first order to show cause was procured by fraud upon the court. The allegations recite: (1) That in the affidavit of the vice-president of the trustee in support of the trustee's motion to dismiss the first order to show cause, it was alleged that all persons named as participants in the various transactions, which were the subject of the action, had since died; and that their testimony was important and essential to an inquiry into their conduct with respect to the transactions complained of; (2) that after entry of the order dismissing the first order to show cause, the vice-president of the trustee made certain statements which appeared in the newspapers on January 31, 1969, to the effect that the bank regretted that the allegations made against it could not have been heard by the court so that every allegation could have been proven to be false, and that "* * * '(h)ad the matter not been decided on strict legal grounds, we would have proven that each of the allegations was false and the result would have been the same."'; (3) that these statements show that the element of prejudice, necessary to make laches a defense, was lacking; and (4) that the prior allegations of prejudice were false and made with the express intent of deceiving the court.
However, the trustee in the affidavit in support of the motion to dismiss the first order to show cause did not allege that a defense of the charge of fraudulent conduct was made impossible by the delay of the remaindermen, but only that the trustee would be seriously prejudiced in defending that...
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