Flynn v. Palmer

• Decision Date: 03 May 1955
• Citation: 70 N.W.2d 231,270 Wis. 43,51 A.L.R.2d 100
• Parties: , 51 A.L.R.2d 1000 Antoinette Resch FLYNN, Plaintiff-Appellant, v. Mildred PALMER, J. Allan Palmer, Caryl Palmer, and Ruth I. Voigt, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 231

70 N.W.2d 231

270 Wis. 43, 51 A.L.R.2d 1000

Antoinette Resch FLYNN, Plaintiff-Appellant, v. Mildred PALMER, J. Allan Palmer, Caryl Palmer, and Ruth I Voigt, Defendants-Respondents.

Supreme Court of Wisconsin.

May 3, 1955.

Rehearing Denied June 28, 1955.

Strehlow & Cranston, Green Bay, for appellant.

Welsh, Trowbridge, Wilmer & Bills, Richard J. Gould, Green Bay, for respondents.

GEHL, Justice.

The trial court was of the opinion and the defendants contend that by the terms of the instrument there was created an express trust with no provision for the disposition of the property on the death of the grantor, and that consequently by virtue of the provisions of section 231.18, Stats., the remainder reverts to his heirs. The statute provides as follows:

'Reversion in grantor. Whenever an express trust is created every estate and interest not embraced in the trust and not otherwise disposed of shall remain in or revert to the person creating the trust or his heirs as a legal estate.'

Plaintiff makes a rather forceful argument that the paper sets forth two independent, divisible provisions. Her contention may not be brushed aside summarily. The granting clause, standing alone and ignoring the habendum clause (which is not an essential part of a deed, section 235.06, Stats.), constitutes a complete and unequivocal conveyance of the fee. It recites that the property is 'sold'. The creator of a trust does not sell. The grant is not made to the grantee as a trustee but to her in her personal capacity. The word 'trust' does not appear. It discloses an intent by the grantor to divest himself of all interest in the estate except the income during him life.

Likewise, with respect to the habendum clause: it may be read as an undertaking, complete in itself, on the part of the grantee to pay to the grantor the net income of the property during his lifetime. Particular force is given to plaintiff's argument by the fact that the paper is executed and signed by both parties. The grantee's signature would have been unnecessary if it had been intended that she was to take no more than a trust interest in the property. For that purpose her mere acceptance of the delivery of the deed would have sufficed. It does not appear that she signed the paper for the mere purpose of indicating her acceptance of it. So construed, it would follow that the trust was created by the grantee by the terms of the habendum clause, and that section 231.18 would be applicable to her. She created the trust and the interest not embraced therein and not otherwise disposed of remains in her.

We do not reject plaintiff's contention that the two portions of the instrument should be treated as independent provisions. Her argument is persuasive and her conclusion is fortified by a study of the instrument as a whole. The purpose of the court is to ascertain the intention of the parties which is to be done by considering all the provisions of the instrument, and by giving effect to such intention. We have already referred to some of the circumstances which we believe indicate a...