Pattison v. Sheasby (In re Pattison's Will)

• Decision Date: 09 February 1926
• Parties: IN RE PATTISON'S WILL. PATTISON ET AL. v. SHEASBY ET AL.
• Court: Wisconsin Supreme Court

190 Wis. 289

207 N.W. 292

IN RE PATTISON'S WILL.

PATTISON ET AL.

v.SHEASBY ET AL.

Supreme Court of Wisconsin.

Feb. 9, 1926.

Appeal from Douglas County Court; William E. Haily, Judge.

Petition by Linna Pattison and others, trustees under the will of William H. Pattison, deceased, opposed by Nellie Pattison Sheasby and others, to have allowed and approved the annual reports. From an order disapproving certain leases, petitioners appeal. Modified by affirmance in part and reversal in part.

Doerfler and Rosenberry, JJ., dissenting.

William H. Pattison died testate at Superior, Wis., November 10, 1910, leaving a large amount of property, including real estate in said city, in Duluth, Minn., and elsewhere.

The widow and two others were appointed executors, their accounts as such settled and allowed October 5, 1911, and the widow and two sons thereafter as trustees pursuant to the terms of the will continued to administer the estate.

The will contained many directions and restrictions as to the duty and upon the power of the trustees. Among such provisions are the following:

“They shall not have the power to sell, convey or mortgage the real estate, or any part thereof, save as hereinafter provided; and they shall not lease any portion of said real estate for a period exceeding fifty years, but in their discretion they may lease any portion of said real estate for a period not exceeding that time, on such terms as shall seem proper; and they shall not receipt or settle for any royalties or rent until such royalties and rent shall become due; and they may sell and convey any part of the real estate belonging to my estate; * * * except * * * any property which I may own situate on Superior street, in the city of Duluth, in said state of Minnesota.”

December 12, 1921, upon a petition and due proceedings had for the construction of certain parts of said will, the court, among other things, “finds, decides, and adjudges that said will does not give, grant, or convey unto said trustees the power or authority to sell the real estate owned by the deceased at the time of his death, situated on Superior street in the city of Duluth in the state of Minnesota.” From this no appeal was taken.

The trust was therein declared to be at an end for all purposes when the youngest child shall arrive at the age of 28 years, which will occur in August, 1926. The trustees are enjoined by said will to manage and administer the estate in the same manner, as near as may be, as guardians of estate of infants are directed to do in like cases in this state, are required to make annual report of their doings with the estate to the widow while living and to each of the children as they successively reach the age of 21 years and in the same manner, and to the same effect as guardians are required to make their annual report concerning the estate of their wards by the laws of this state.

In October, 1923, a hearing was had in countycourt upon the petition of the trustees to have allowed and approved their certain annual reports covering the years 1911 to 1922, both inclusive, involving certain leases of three several pieces of real estate with improvements, all situated on Superior street in Duluth. One such was of the New Jersey building to Polinsky and Ribenack, the second of the Haug building to one Kris, and a third of the Giddings building to the Kelley Hardware Company.

The parts deemed material here of the lease dated November 15, 1922, of the New Jersey building are summarized as follows: The term first recited is for 49 years from December 1, 1922. The rent: For the first 10 years $10,000 per year. Thereafter an increased rental upon valuations of the land exclusive of improvements for successive 10-year periods; also, beginning December 1, 1922, and ending on the date when the buildings and improvements on said premises shall be sold and conveyed to the lessees or shall become their property, if such sale be made, the end of the lease, if such sale be not made, a further annual sum of $5,100; also all taxes and assessments on the real estate, etc.; also the cost of insurance (with provisions making a national bank of Duluth trustee as to insurance moneys).

A further provision recited: The lessees at the time of making the lease paid to the lessors $30,000, and will pay the additional sum of $55,000 in certain annual payments with a balance of $3,000, only if and when the buildings and improvements shall be conveyed to or become the property of the lessees (provisions being made as to interest); that the lessees agreed, whenever within one year after December 1, 1935, and after certain specified events the owners shall give good title to the lessees of the buildings and improvements, the lessees will pay the $3,000 balance aforesaid, and thereafter said buildings and improvements shall be the property of the lessees, subject to the terms and conditions of the lease. The failure to pay such $3,000 or to accept such conveyance within 60 days of its tender shall constitute a breach of the lease by the lessees. If such conveyance be not then made, and if the lessees shall not have then become owners of the buildings and improvements by other terms of the lease then they shall be credited with the said $30,000 and the other payments aforesaid. The lessees were to indemnify lessors in certain cases of improvements, etc., and had the right to erect independent buildings. The lessees agreed to repair or rebuild in case of partial or total destruction of the buildings, etc.

In case of a new building it is to be at a cost of not less than $85,000, etc. If, in certain contingencies, lessees erect a new building, they shall become the owners thereof forthwith (with provisions relating to the $55,000 and the $5,100 annual payments aforesaid); also that, upon termination of the lease, the lessees will surrender possession, and all buildings and improvements shall become lessor's absolute property upon compliance, however, with the following terms: That at the end of the 49 years the lessors will pay the lessees the full amount of the value of the buildings and improvements then on the premises, at a price to be determined by appraisal; provided further that, in lieu of such payment, the lessors may give before the term ends an option to extend said lease for 49 years more upon revaluation rentals. If lessees fail to accept such option, if tendered, then lessors need not pay the lessees for said buildings as above provided. If lessees accept the option, then the lessors will pay lessees at end of the extended term 50 per cent. of the then value of the buildings and improvements.

Provision was made permitting, under certain conditions, the payment of rentals to a trustee instead of to the lessors, and to be invested and held as security for the lessees for contemplated improvements and new buildings.

The Kris lease for the Haug building was executed March 15, 1922, was similar except as to amounts, and presents the same questions as the foregoing. The Kelley Hardware Company lease was dated January, 1920, and was for a term of only 49 years.

Many objections were interposed to the trustees' reports by respondent, eldest daughter of deceased and a nonresident.

A great amount of testimony was taken, and, upon the entire matter thus presented, the county judge on September 25, 1924, filed his “opinion or decision” with a very full discussion of the questions involved and of the authorities bearing on the same. It covers over 40 pages of the printed case, and is not in the usual and recognized form of findings of fact and the conclusions of law.

The trial court expressed the opinion that the three above described were practically 98-year leases. He also recited that he was passing upon all the matters involved in the account so far as they affect violations of the trust, “in order that both parties may have the complete consideration and judicial findings, upon which to regulate their conduct or consider any remedy hereafter.” He disapproved of these three leases on several grounds hereinafter discussed, but expressly disclaimed jurisdiction to set them aside, and disapproved of a number of items in the accounts, and closed by saying, in effect, that the findings and adjudications would be subject to correction on motion of counsel as to any inaccuracies or erroneous applications.

On October 2d the trustees filed some 58 exceptions “to the findings of the court, made and filed in this proceeding upon September 25, 1924,” etc., and on the same day gave notice that the said trustees and each of them, “being aggrieved by the determination and order of said county court rendered upon,” etc., “appeal from such determination and order, and from the whole thereof,” to this court. No other order or determination upon these accounts appears in the record.

Upon argument here, the trustees have abandoned all the matters covered by their exceptions and appeal above recited except the questions involved as to the validity of the three leases.

Hanitch, Hartley & Johnson, of Superior, for appellants.

W. M. Steele, of Superior, and A. E. McManus, of Los Angeles, Cal. (Steele & Tipton, of Superior, of counsel), for respondents.

ESCHWEILER, J. (after stating the facts as above).

The respondent challenges the right of the appellants to be now heard, on the ground that this court has no jurisdiction to hear and determine because of lack of an appealable order. Appellants, by their notice of appeal recited above, treat that which was designated by the trial court as his “decision and opinion” at the commencement, and his “findings and adjudications” at the end thereof as an order merely, and not as in the nature of a determination or judgment.

Unquestionably it would have been better practice to have had the lengthy opinion and decision of the trial court followed by concise findings of fact and conclusions of law or by a brief determination or order upon the...