Becker v. Chester

• Decision Date: 25 September 1902
• Citation: 91 N.W. 650,115 Wis. 90
• Parties: BECKER ET AL. v. CHESTER. BECKER ET AL. v. GREEN ET AL.
• Court: Wisconsin Supreme Court

115 Wis. 90

91 N.W. 650

BECKER ET AL.

v.CHESTER.

BECKER ET AL.

v.GREEN ET AL.

Supreme Court of Wisconsin.

Sept. 25, 1902.

Motions for retaxation of costs. Denied.

For original opinion, see 91 N. W. 87.

This was an action seeking to have a certain clause of a will creating a trust fund in the hands of the executors for the benefit of those bringing the action declared void, and asking for an accounting to them in severalty of the property so held in trust.

MARSHALL, J.

We are asked to modify the judgment rendered here on these appeals so as to allow taxable costs in this court to the losing parties payable out of the trust fund. The prevailing parties, by their respective counsel, consent to the making of such modification, and yet we are unable to come to the conclusion that it can properly be done. A definite rule has been established as to when a trust fund, held by an executor, can be depleted in the manner here requested in the absence of a statute so regulating the matter. In re Donges' Estate, 103 Wis. 497, 79 N. W. 786, 74 Am. St. Rep. 885. It is conceded that this action does not fall within the rule unless it should be viewed as one for the construction of a will. The court would not have gone so far as in the Donges Case had it not been for the previous decisions in respect to the subject, which we felt bound to follow. The whole practice of inviting litigation by allowing parties to indulge in judicial controversies involving trust funds at the expense thereof, regardless of whether such parties win or lose, is pernicious and should not be encouraged by any judicial rules. A careful reading of the Donges Case must convince any one that such was the view of this court when that case was decided. That view has rather been strengthened than weakened by efforts to have the rule declared by the court liberally construed, minimizing its effects as regards the injustice it was intended to prevent. All such efforts must fail. We incline to a strict rather than a liberal construction of the rule. An action not, strictly speaking, for the construction of a will or contesting the validity of a will, though the meaning or even the validity of a will may be the vital question involved, does not fall within the rule. Otherwise, in an action of replevin or trover, or any one of others that might be mentioned, if the right sought to be vindicated turned upon the meaning or validity of a will, a party proceeding in good faith, whether successful or not, would be entitled to have his taxable costs out of the property involved. The mere fact, it must be understood, that the validity of a will or its meaning is a vital question in a case, is not sufficient to satisfy the rule giving to a losing party in this court the right to have his taxable...