Pettee's Will, In re

• Decision Date: 06 April 1954
• Citation: 63 N.W.2d 715,266 Wis. 347
• Parties: In re PETTEE'S WILL. PETTEE, v. PETTEE et al.
• Court: Wisconsin Supreme Court

Page 715

63 N.W.2d 715

266 Wis. 347

In re PETTEE'S WILL PETTEE, v. PETTEE et al.

Supreme Court of Wisconsin.

April 6, 1954.

An order entered July 21, 1953 dismissed the petition by which Robert A. Pettee sought to terminate the trust established for his benefit by his mother's will, and also sought to compel the trustees to place certain property in the trust estate. The appeal is from the order dismissing the petition.

Before the death of Josie B. Pettee, she and her son, Roger Pettee, owned and operated in partnership a laundry and dry cleaning business in the city of Rice Lake. Mrs. Pettee had a seventy-five per cent interest and Roger a twenty-five per cent interest in the partnership. Mrs. Pettee's other son, Robert, occasionally worked in the dry cleaning part of the business but he was a rover who had left high school in his third year and there were long periods when he worked at his trade in other parts of the country. He got jobs easily, never stayed very long on one, and always quit voluntarily. At times Robert drank a good deal and was frequently in trouble with the law and with his wife. Roger behaved himself, finished college and thereafter worked steadily in the Rice Lake Laundry. In October, 1942, when Robert was about thirty-three years old and Roger twenty-nine, both men enlisted in the navy.

Mrs. Pettee died February 1, 1945. Both men came home on leave at that time and took part in the start of probate proceedings. Mrs. Pettee's will left thirty per cent of the laundry business to Roger,--who already owned twenty-five per cent,--and forty-five per cent in trust for the benefit of Robert. Roger and a family friend, Mr. Stebbins, were named executors of the will and trustees of the trust. The trust provisions of the will are:

'Fourth: As Executors and trustees hereunder I do hereby appoint A. P. Stebbins and my said son, Roger Pettee, the latter to serve only in the event that he shall be active in said business at the time of my death, and shall so continue throughout the duration of the trust, and I do hereby grant to them full power to mortgage, sell and distribute, in their discretion, any, either or all of the assets of my estate, and to invest the proceeds of the disposition of any property willed by me in trust, to continue the operation of the said business or to dispose of the same as they deem wise, and to pay over to my said son, Robert Pettee, part or all of the net earnings or the principal, or both, of the trust estate, as they deem wise, the purpose of such trust being to preserve the share of the said Robert Pettee until such time as he can properly care for it himself, and in the meantime to afford him such income as he may need, and in the event that by the exercise of any discretion herein vested in the said executors and trustees any loss or damage shall accrue to the trust estate, such loss or damage shall not be charged or imputed to my executors and trustees excepting only for bad faith shown in the exercise of their discretion.'

Robert did not want to live in Rice Lake and he thought he would have to do so if he had an interest in the laundry. He wanted Roger to buy him out and there was some discussion of this while the brothers were home. Roger employed his father, who had been divorced from Mrs. Pettee, to manage the laundry while Roger was in naval service and, after seeing that the probate proceedings were begun, Roger returned to his station and Robert went absent over leave. His misbehavior had continued all through his navy career, he was frequently court martialed and on this occasion, after a period of imprisonment, he was given a bad conduct discharge in May, 1945. He came back to Rice Lake and worked in the laundry for a while and was still there in July. During this time he was having difficulty with his wife and was despondent and attempted suicide by drinking Lysol.

In July, 1945, Mrs. Pettee's estate was ready for settlement. Roger came home on leave and they resumed the conversations concerning his purchase of the share of the laundry bequeathed in trust for Robert. On July 9, 1945, the brothers, their father, Mr. Coe, who was attorney for the executors, and Mr. Stebbins went to county court with a petition for the sale of the estate's interest in the laundry at a price corresponding to its appraisal in the estate. Robert signed the petition in the court room and also signed a separate consent to the sale and an approval of the plan of distribution of the proceeds. Robert now testifies that he did not know the contents of the documents which he signed and they were not explained to him. He also testifies that he was very despondent at that time but was not under the influence of liquor and was not misinformed. The attorney and the executors took the papers into chambers where the judge signed the order directing the sale. A final account and order for distribution was then presented to the judge with the written consent of interested parties, including Robert, to immediate hearing and allowance. It was so allowed and the order of distribution was signed, as well as an order appointing Roger and Mr. Stebbins trustees as nominated by the will. Roger paid the purchase price to the executors who turned Robert's share over to the trustees (themselves) and they received their discharge as executors October 1, 1945.

Soon after the sale Robert went to work in Mankato, Minnesota, and after a short time moved to St. Paul, where he worked for a number of dry cleaning firms. Roger received a navy commission and in February, 1946 was relieved from active duty and returned to manage the laundry. In October, 1947, at Roger's request, Robert returned to Rice Lake and worked there till July, 1949, and then went to Florida where he lives now. During all this time he frequently asked for and received money from the trust. He continued to drink heavily for a time but he has not drunk intoxicants since 1949. He testified that it was sometime in 1947, probably in August, when he first discovered the sale price of the trust's interest in the laundry. On March 20, 1952 he commenced these proceedings by service of the petition first referred to. Judge Barrett of Washburn county was called in and a hearing was had beginning on July 11, 1952. Decision dismissing the petition was rendered July 21, 1953.

Other material facts will be stated in the opinion.

Wood, Warner Tyrrell & Bruce and William J. Mantyh, Milwaukee, for appellant.

Coe & Coe, Rice Lake, for respondents.

BROWN, Justice.

We must affirm the order of the trial court denying Robert's demand that the trust be terminated. Paragraph Fourth of the will, supra, gives to the trustees discretion in paying to or withholding from Robert the corpus of the trust estate. The trustees testified that in their judgment Robert, as of the time of hearing, was still incapable of properly caring for the trust fund. Robert testified that he had had no experience in business management. The trial court found that the trustees' recommendation was within the bounds of their discretion and was made in good faith. Its finding, and its determination that the trust continue are supported by the evidence and does not constitute an abuse of the court's discretion. We must sustain it.

Robert's proceeding to compel the delivery of the laundry to the trust estate is more complicated. In the first place, counsel for the trustees submits that the county court lost jurisdiction of this matter when time expired within which an appeal could be taken from the final judgment in the matter of Mrs. Pettee's estate, which final judgment directed the delivery by the executors to the trustees of Robert's share of the proceeds of the sale of the laundry. The trustees contend that relief, if any is available, must be sought in a court of general jurisdiction. Sec. 253.03(2), Stats. determines this latter issue in favor of the county court's jurisdiction.

'The county court shall have concurrent jurisdiction to hear, try and determine all matters and controversies which may arise between any personal representative, guardian or trustee appointed by such court and any other person relating to title to or interest in...