Dillon v. Dillon

• Decision Date: 09 November 1943
• Citation: 11 N.W.2d 628,244 Wis. 122
• Parties: DILLON v. DILLON
• Court: Wisconsin Supreme Court

244 Wis. 122

11 N.W.2d 628

DILLON

v.DILLON

Supreme Court of Wisconsin.

Nov. 9, 1943.

Appeal from a judgment of the Circuit Court for Columbia County; Clayton F. Van Pelt, Judge.

Affirmed.

Action for divorce brought by Dorothy C. Dillon against Thomas J. Dillon. After a trial on the merits, the court made findings of fact and conclusions of law upon which judgment was entered granting an absolute divorce; awarding the care, custody and education of the four minor children to plaintiff; and providing for the payment to plaintiff of alimony and for the support of the children out of income to be received by defendant as a beneficiary under certain testamentary trusts; and also providing for the conservation of the defendant's interest in the corpus thereof, pending the final determination of the property rights of defendant therein and the final division of his property in lieu of the allowances of permanent alimony to plaintiff. Defendant appealed from certain provisions of the judgment.

Evan C. Schwemer, of Milwaukee (William E. Burke, of Milwaukee, of counsel), for appellant.

Daniel H. Grady, of Portage, for respondent.

FRITZ, Justice.

The principal contention of appellant, Thomas J. Dillon, is that his interests in the income and corpus of a testamentary trust created by Charlotte M. Burgess, his grandmother (hereinafter called the Burgess trust), is not assignable and cannot be reached for the payment to plaintiff of alimony or the support of his children; and that therefore the court erred in adjudging as follows: (1) That there is awarded to plaintiff fifty per cent. of appellant's income from the Burgess trust as alimony-pending the final determination of the property rights of the parties-and twenty-five per cent. thereof for the care and support of the minor children, and that out of said income there also shall be paid to plaintiff, as funds become available, $200 to pay her family expenses to October 1, 1942, and $856.05 to reimburseher for money expended by her theretofore for family support; (2) that to conserve for the use and benefit of appellant and his family his interest in the corpus of the Burgess trust and in a testamentary trust created under the will of his aunt Emma Kirkpatrick (hereinafter called the Kirkpatrick trust), the appellant shall execute an assignment of funds due from the Burgess trust to the clerk of circuit court of Columbia county to the extent and for the purposes for which payments are ordered by the court to be made out of said funds, and shall also authorize and direct the trustees of said Burgess and likewise the trustees of the Kirkpatrick trusts to pay to said clerk such parts of the corpus of said trusts as may eventually become due appellant; and (3) that the court reserves for further determination, when the corpus of the trusts are subject to distribution and appellant's interests therein are paid to the clerk, the question of the final division of property or the allowances to be made to the plaintiff herein as permanent alimony.

In passing upon appellant's contention in relation to those provisions of the judgment, it suffices to note the following: Plaintiff and the appellant were married in 1932. Prior thereto the Burgess and the Kirkpatrick trusts were created by wills, each of which was executed in Pennsylvania, where each of the testatrices resided, and there, upon the death of each, her will was duly admitted to probate and the trustees thereunder were duly appointed. In respect to the Burgess trust there are the following provisions:

“No beneficiary receiving under this trust shall have the power of anticipation, alienation, or assignment of any principal or income accruing to such beneficiary from this trust.”

“One-fourth of the said trust estate shall be held for the use and benefit of Thomas J. Dillon, Jr. The income from such portion to accumulate until said Thomas J. Dillon, Jr., shall arrive at the age of thirty years, at which time, and semiannually thereafter, until said Thomas J. Dillon, Jr., arrives at the age of forty years, the income is to be paid to him. Upon his arrival at the age of forty years said trustees are hereby authorized and directed to pay to him the balance then remaining in the trust fund held for his benefit.”

“In the event of the death of said Thomas J. Dillon, Jr., leaving lawful issue, I direct that said trustee continue to hold the said portion of Thomas J. Dillon, Jr., in trust for his issue, and said trustees are directed to pay such issue, or in its discretion to accumulate, or to expend on or for the benefit of such issue, the net income to which said issue is entitled, until such issue arrives at the age of twenty-one years, and when or as such issue arrives at the age of twenty-one years, I authorize and direct such trustees to pay over to him or her, his or her portion of the estate of his or her parent.”

The Kirkpatrick trust was in relation to a fund of $75,000, the income of which is to be received by F. C. Kirkpatrick, testatrix's husband, for and during his life, and upon his death, the trust is to continue for the benefit of certain beneficiaries, including the appellant, or the issue of any beneficiary in case of his death prior to becoming thirty years of age, at which time the beneficiary, if living, is to be paid his share of the trust fund and the accumulated income thereon. There is no provision in the Kirkpatrick will prohibiting a beneficiary from alienating or assigning his interest in the trust estate. The testatrix's husband was still living when the case at bar was tried.

Appellant, in support of his contention that his interest in the income and corpus of the Burgess trust is not assignable and cannot be reached by plaintiff for the payment of alimony or support money, is based upon (a) the above quoted provision in the Burgess will that no beneficiary under the trust shall have the power of anticipation, alienation, or assignment of any principal or income accruing therefrom, and (b) appellant's reliance on the rule applied in Schwager v. Schwager, 7 Cir., 109 F.2d 754, and similar decisions, which hold that in cases of such spendthrift trusts as were under consideration therein, neither the income nor the corpus of the trust can be reached by the wife of the beneficiary in an action instituted to enforce his obligation for the support and maintenance of his wife and minor children. Appellant claims that rule should be adopted in this state and therefore, as the law of the forum, it should be applied and held to be controlling in this action. Appellant's contentions cannot be sustained.

The rule applied in the Schwager case, supra, and some other decisions relied upon by appellant, has not been adopted in this jurisdiction; and there is a decided conflict in the decisions in respect thereto and also the circumstances and purport of the particular provisions under which the rule should be held applicable. In the case at bar the provision in question (quoted above) is briefly stated in simple and unambiguous language. To ascertain testatrix's intended meaning and understanding in using that provision, due consideration must be given to the circumstances then attending her and by which she was surrounded and probably influenced, including the important facts that she was a resident of Pennsylvania and that she executed her will and undoubtedly expected her estate to be probated there. In that state the rule has been definitely established by the decisions in Re Moorehead's Estate, 289 Pa. 542, 137 A. 802, 52 A.L.R. 1251, and in Re Stewart's Estate, 334 Pa. 356, 5 A.2d 910, 911, that the interest of a husband who is the beneficiary under a spendthrift trust can be reached in satisfaction of an enforceable claim against him by his wife or children for alimony or support, notwithstanding the following provisions-which are substantially to the same effect as the spendthrift trust provision in the Burgess will-to-wit:

“Said trust fund and the income therefrom shall not be liable for the payment of any debts of my said son, nor shall the same be liable to anticipation, execution or attachment in the hands of the said trustee.” In re Stewart's Estate, supra.

“I will and direct that neither the income payable to my grandson, William H. Watt, nor the corpus from which the same is derived, shall be liable to or for the contracts or debts of said William H. Watt, or to execution or to attachments at the suit of any of his creditors; but shall be absolutely free from the same, and he shall have no power to sell, assign or incumber the same or any part thereof, or to in any way anticipate the said income.” In re Moorehead's Estate, supra [289 Pa. 542, 137 A. 803, 52 A.L.R. 1251].

In that case the court, in relation to that provision, said:

“Construing this will then as a whole and giving adequate attention, in conjunction with the examination of its terms, to the circumstances attending testatrix,...