Osborne v. Gordon

• Decision Date: 26 September 1893
• Parties: OSBORNE v. GORDON.
• Court: Wisconsin Supreme Court

86 Wis. 92

56 N.W. 334

OSBORNE

v.GORDON.

Supreme Court of Wisconsin.

Sept. 26, 1893.

Appeal from circuit court, La Crosse county; A. W. Newman, Judge.

Rockwell E. Osborne, trustee under the will of Harriet A. Wells, deceased, rendered his account to the county court of La Crosse county. An objection by George H. Gordon, guardian ad litem of the minor children of Eva M. Odell, one of the devisees under the will, was overruled. From a judgment of the circuit court reversing the judgment of the county court, the trustee appeals. Reversed.Winter, Esch & Winter, for appellant.

George H. Gordon, in pro. per.

ORTON, J.

The facts of this case are as follows: Harriet A. Wells died testate at the city of La Crosse on the 12th day of May, 1889. The following are the provisions of her will, material to this case: “All the rest, residue, and remainder of my estate, both real and personal, I hereby give, devise, and bequeath to my said executor, to sell, dispose of, and convert into money, either at private sale or public auction, on such terms as to him shall seem just and reasonable, and to divide the proceeds into three equal parts, one part of which shall be paid to my said daughter Rebecca S. Thompson, to have and to hold, to her, her heirs and assigns, forever. One part shall be paid to my said son, Helmus, to have and to hold, to him and his heirs and assigns, forever. The other part or third shall be paid to my son, Helmus M. Wells, to be held by him, however, in trust, for the following purposes: The interest and income arising from this part of my estate, so held in trust, shall be paid over by the said trustee to my daughter Eva M. Odell from time to time, as it shall be received, during her natural life; and I hereby authorize the said trustee to pay over to my daughter Eva any portion of the principal of said trust fund, as it shall seem to him proper, for her support and comfort. And in case my said daughter shall die, leaving issue, so much of said trust fund as shall remain shall be paid over to her children, to hold to them. and their heirs forever; but, in case my said daughter shall die childless, then said trust fund so remaining, if any, shall be paid over to my said daughter Rebecca and to my son Helmus, to each an equal part, to hold to them and their heirs forever.” This is all of the will that can aid us in the construction of the clause in question. Helmus M. Wells qualified as executor, and accepted the trust, and paid over to the said Eva M. Odell only $209.40 before his death, on the 20th day of January, 1890. At that time the estate had not been assigned. On the 2d day of April, 1890, the said Rebecca S. Thompson was appointed administratrix de bonis non of the estate of Harriet A. Wells; and on the 7th day of May, 1890, Louisa M. Wells was appointed administratrix of the estate of Helmus M. Wells, and transferred the estate of Harriet A. Wells to said administratrix de bonis non May 20, 1890. On the 11th day of October, 1890, Rockwell E. Osborne, the appellant, on the petition of Eva M. Odell, was duly appointed trustee in the place of said Helmus M. Wells, deceased, to carry out the trust created by the will, and he was to have like powers and duties as the original trustee, and there was paid to him by the administratrix the sum of $7,997.01 of the trust fund. On the 7th day of February, 1891, the appellant, as such trustee, paid to said Eva M. Odell, the beneficiary, the sum of $1,000 of the principal of said trust fund, which seemed to him proper for her comfort and support. The appellant trustee, having presented his accounts, as such trustee, to the county court, for allowance, this item thereof, with others, was duly allowed and confirmed, against the objection of the respondent, George H. Gordon, the guardian ad litem of the minor children of the said Helmus M. Wells, deceased. The said guardian ad litem appealed from said order of allowance of said item of $1,000 to the circuit court, and that court reversed the order of the county court in that behalf on the ground that the trust reposed in said Helmus M. Wells by the will, to pay any part of the principal of said one-third part of said estate to the said Eva M. Odell, was a discretion reposed in the said Helmus, and, not having been exercised by him, did not survive, but failed on his death, and that the appellant, as his successor in the trust, had no power or authority to make said payment; and said trustee appealed to this court from said judgment.

The question thus presented depends upon the construction of this clause of the will: “Pay over to my daughter Eva any portion of the principal of said trust fund, as it shall seem to him proper for her comfort and support.” This is an express trust and a mixed trust and power, or a trust power. Section 2123, Rev. St.; Perry, Trusts, § 20. The power is imperative, and imposes a duty on the donee or grantee, the performance of which may be compelled by action for the benefit of the party interested, and not a power made expressly to depend on the will of the grantee whether it shall be executed or not. Upon the death of the original trustee appointed by the will, the trust vests in the court, with all the powers and duties of the original trustee, to be executed by some person appointed for that purpose under the direction of the court. Section 2094, Rev. St. This power joined to the trust is imperative, and must be executed, and the general trust is settled and fixed by the testator or settler of the trust. It makes no difference with such a trust power if the...