Mulberger v. Beurhaus (In re Cole's Estate)

• Decision Date: 31 January 1899
• Citation: 78 N.W. 402,102 Wis. 1
• Parties: IN RE COLE'S ESTATE. MULBERGER v. BEURHAUS ET AL.
• Court: Wisconsin Supreme Court

102 Wis. 1

78 N.W. 402

IN RE COLE'S ESTATE.MULBERGER

v.BEURHAUS ET AL.

Supreme Court of Wisconsin.

Jan. 31, 1899.

Syllabus by the Judge.

1. When the officers of a public corporation, upon whom the duty devolves of appealing to the courts to protect its rights, refuse to put the necessary judicial machinery in motion upon demand being made therefor by a taxpaying member of such corporation acting for himself and all other such persons, or the circumstances are such as to obviously render such demand useless, such taxpayer may, so acting, take the place of such public officers for the purpose of enforcing the corporate rights.

2. If a public corporation be aggrieved by a determination of a county court as to a matter pending before it, and the proper officers of such corporation refuse or neglect to appeal from such determination to the circuit court for relief, a taxpaying member of such corporation, acting as before indicated, may intervene and take the appeal.

3. The test of the right of appeal in the circumstances stated above is not whether the taxpayer is directly injured by the determination of the county court, but whether the corporation as a whole is injured or aggrieved in a matter in which the individual members of the corporation have a substantial interest.

4. If property consisting of real estate be by will conveyed to trustees to hold for the life of certain persons in being therein named, the income therefrom to be used so far as necessary to keep the property in repair and pay the taxes and insurance, and the balance to be paid to those having the life interest during the continuation of their lives, and the corpus of the property to be, at the termination of the life interest, conveyed to a municipal corporation for purposes for which it may legally hold and devote it, and there be ample income from such property to preserve it for the ultimate purpose named in the will, and there be no express power in the will for the trustees to make permanent repairs or improvements on the property out of the corpus thereof, only the income can be devoted to that purpose.

5. In the circumstances mentioned in the foregoing, the trustees of the trust, even with the consent of those having the life interest and the municipality entitled to the property ultimately, have no right to devote any part of the principal of the trust estate to the making of betterments or permanent improvements.

6. In an action to enforce a trust, or concerning its administration, the subject of costs is regulated wholly by statute. All costs and counsel fees as well, for which the trustees would otherwise be liable, are chargeable to the trust property or income thereof in the absence of some direction to the contrary based on bad faith on the part of the trustees. The court has no authority, independent of a statute on the subject, to direct the payment of costs or counsel fees out of the trust fund, except such taxable costs as the trustees would otherwise be compelled to pay personally.

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

In the matter of John W. Cole, deceased, Henry Mulberger appeals from the allowance of the accounts of Diego H. Beurhaus and others, executors. From a refusal of the circuit court to dismiss his appeal, the executors appeal. Affirmed.

John W. Cole died testate February 17, 1894. By his will he bequeathed to three executors named the bulk of his property in trust, to manage and control the same during the life of his wife, Eliza Cole, and his son Oscar A. Cole, to keep all the buildings insured and in a proper state of repair, to collect all rent and other revenues of the estate, to disburse the same by paying for all repairs, insurance, taxes and expenses of administering the trust, and by paying the residue to the wife and son in certain proportions indicated, during the lifetime of both, and the whole to the survivor during his or her life; and at the death of the wife and son the entire trust estate received by the trustees under the will was directed to be conveyed to the city of Watertown in trust for the establishment and maintenance of a public library and business men's club room, and a home for aged and poor people of the city. One of the executors named refused to serve, and one died in the lifetime of the testator. Such proceedings were had that the defendants were duly appointed as trustees and executors, and prior to October 28, 1897, they duly completed the settlement of the estate as to the usual probate proceedings. Before the testator died he commenced making some repairs and changes of some business buildings covered by the bequests, which repairs were continued to completion, and other repairs and changes in the property bequeathed were made by the trustees, which, in effect, modernized two of such buildings by putting in new fronts and otherwise making them more desirable as rentable property. A barn was also reconstructed, and some expenditures were made on a farm by way of making a well and erecting a windmill. On the 10th day of June, 1897, a detailed statement of receipts and disbursements made on account of the property was filed, whereby it appeared that several thousand dollars of income had been received in excess of the amount paid out for repairs and improvements. All such repairs and improvements were charged against the income, and also $2,164.97 paid to the wife and son, and there was yet left in the hands of the trustees a balance of $1,084.48. Subsequent to the filing of such statement the trustees represented to the common council of the city of Watertown that they were entitled to be reimbursed out of the estate for expenditures charged against the income for improvements on the property and other expenditures. The result was that an agreement was made between such trustees and the city council, to the effect that a portion of the trust estate known as the “homestead,” should be sold, and the proceeds used to reimburse the former for money paid out by them for funeral expenses, debts and taxes due at the death of the testator, and for permanent improvements made, or that might be made, on the property. Such proceedings were thereafter had that the homestead was sold under an order of the county court, the proceeds to be applied according to the subsequent order of the court. Thereafter on the 28th day of October, 1897, defendants made a final report as executors, of the expenses incurred in the settlement of the estate, showing a balance of $1,791.21 due them. They also filed a detailed statement of what they called “permanent improvements” on the real estate, as follows: On the Cole Block, $1,225.99; on the homestead, $146.58; on the Harvey Block, $2,184.98; on the barn, $316.02; on the farm, $205.50,--the same being identical with the expenditures paid out of the income according to the statements filed in June. They also filed a statement of expenses of the sale of the homestead, amounting to $35, the entire account aggregating $4,114.07. Against that they credited the receipts from the sale of the homestead, leaving a balance due them of $114.07. A hearing was had on the accounts as so made up, at which a citizen and taxpayer of the city, the respondent herein, on behalf of himself and all others similarly interested, filed objections upon the ground that no authority existed for the making of permanent improvements on the trust property, and that none of the items in either of the accounts were for such improvements and that no part of the proceeds of the homestead could properly be applied in payment of either the executor's accounts for the settlement of the estate, or that for the so-called improvements upon the property. A hearing was had on such objections with the result that the court, by order, determined that the account for the amount due the executors, of $1,791.21, was payable out of the property of the testator not disposed of by his will; that no part of the proceeds of the homestead could be used to reimburse the executors for expenditures upon the trust property in excess of such as constituted permanent improvements strictly so called; that it was impossible to determine the amount expended for such improvements with exactness but that there should be allowed on that accountthe $316.02 paid out on the barn, $940.32 on the two business blocks, and $35 for expenses of making the sale of the homestead, in all $1,291.34. The objecting taxpayer, appellant herein, in the capacity in which he filed his objections, appealed from the determination of the county court to the circuit court. In the circuit court the trustees moved for a dismissal of the appeal upon the ground that the appellant had no appealable interest. The motion was denied. The result of the hearing on appeal was a judgment that the agreement between the city of Watertown and the defendants for a sale of the...