Tyson v. Houghton
| Decision Date | 30 April 1897 |
| Citation | 96 Wis. 59,71 N.W. 94 |
| Parties | TYSON v. HOUGHTON ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.
Action by Virginia C. Tyson against George G. Houghton and others to remove a cloud. From a judgment for plaintiff, Virginia Cabell Tyson and Juliet Catharine Tyson, infant defendants, appeal. Reversed.
The case is thus fairly stated in the appellants' brief:
This is an action to remove a cloud upon the title of certain real estate, by annulling a trust deed and a will, in certain particulars, and having them declared void as being in violation of the statutes against unlawful suspension of the power of alienation. Prior to the 19th day of November, 1874, Robert H. Cabell, of Baltimore, Md., owned 15 lots in the city of Milwaukee. On said 19th day of November said R. H. Cabell and Catharine, his wife, made and executed a trust deed of said lands to I. A. Lapham and George G. Houghton, both of the city of Milwaukee, reciting that they (the Cabells) had an only child, Virginia Catharine Cabell, then in her fourteenth year, and were anxious to convey said lands by absolute title, free from claim of dower, to trustees, for the uses and purposes therein set out, and conveying the same to said Lapham and Houghton, trustees, their successors or assigns, upon the trust and purpose: (1) That they should hold the same for the use of grantor R. H. Cabell during his life, and permit him to use, occupy, and enjoy the same; to take, receive, and enjoy the rents, issues, and profits thereof during his life, with power to lease the same and give acquittances for the rents thereof without the same passing through the trustees; the said R. H. Cabell reserving to himself a life estate in said lands, and the rents, issues, and profits thereof, as fully as if said deed had never been made. (2) That trustees should hold said lands at the death of said Cabell to and for the sole use and benefit of his said only child, Virginia Catharine, if she should survive him, during her life, to be freed and discharged from, and in no manner to be subject to, the debts, contracts, control, or marital rights of any husband she might take, but as her sole, separate, and exclusive estate during her life, and trustees should permit her to use, occupy, and enjoy the same; to take the rents, issues, and profits thereof as her sole, separate, and exclusive estate, with power in her (or in her guardian during minority or until marriage) to lease the same, and give acquittances for rents, without the same passing through said trustees, during her life. Herein said Virginia Catharine was granted power and authority, after reaching 21 years of age, and while she should be married or a widow, to devise, appoint, and distribute said lands, or any part thereof, in fee simple, by her last will, in such manner or proportions as she might think proper, between her children, if any, living at her death, and the lawful issue of any children of hers who might die in her lifetime leaving such issue; and she might allot the whole of said lands to any one or more such persons to the exclusion of the others, with which power and right of selection she was expressly invested and intrusted, and the execution whereof was to depend upon her own free will and option; and in the event that she should die, leaving a will in the execution of such power, the trustees should surrender and convey said lands, or such part thereof as she should so appoint, to such of her children living at her death, or the lawful issue of any child of hers that might have died in her lifetime leaving such issue, as she might by her will have selected or appointed, and in such manner or proportions as she might thereby direct or appoint. But (3) if Virginia Catharine should die without leaving a will in the execution of said power, the trustees should convey said lands in fee simple equally to the children of said Virginia Catharine living at her death, and the issues of any child of hers that may have died in her lifetime leaving issue, such issue taking according to the right of representation. If (4) Virginia Catharine should die without leaving any child living at her death, or the issue of any child of hers that might have died in her lifetime, trustees should hold the said lands for the use of Catharine Cabell, her mother, during her life, and at the death of Catharine convey the same in fee simple to such persons as should then be the heirs at law of said R. H. Cabell according to the laws of the state of Wisconsin. If (5) Virginia Catharine should die without leaving any child living at her death, or the issue of any child of hers that may have died in her lifetime leaving issue, and if Catharine Cabell, her mother, should not survive her, trustees should convey said lands to such persons or person as should at the death of said Virginia Catharine be the heirs at law of said R. H. Cabell, according to the laws of Wisconsin. If, (6) at the death of said R. H. Cabell, Virginia Catharine should not be living, trustees should convey the lands to her children, if any should be living at her death, and the issue of any child of hers that might have died in her lifetime leaving issue, such issue taking by representation. If (7) Virginia Catharine should then have died without leaving child or issue, trustees should hold for Catharine Cabell during her life, and at her death convey to such persons as should then be heirs at law of said Cabell according to the laws of Wisconsin. If (8) at R. H. Cabell's death Catharine Cabell should also be dead, trustees should convey to such persons as should at his death be his heirs according to the laws of Wisconsin. It was provided further in and by said trust deed that the trustees should have no power to sell, lease, incumber, or dispose of said lands, or the rents, issues, or profits thereof, and that it was intended solely to convey the lands to them for the purposes set out, and no other, and they should hold the same for the benefit of the persons mentioned, and convey to such persons, as aforesaid. This trust deed was by said R. H. Cabell caused to be recorded in the register of deed's office in Milwaukee county on November 25, 1874; and said Lapham and Houghton consented to accept the trusts therein, but never entered on the performance thereof, or into the possession of the property. Said R. H. Cabell died at Baltimore about the 20th day of February, 1875, leaving surviving him his wife, Catharine, and his only child, Virginia...
To continue reading
Request your trial
-
Richardson v. Tyson
...and perfected. He was entirely successful, this court holding the trusts valid, and directing a dismissal of the bill. Tyson v. Tyson, 96 Wis. 59, 71 N. W. 94. We, however, denied motion that all costs be paid out of the estate. Mr. Richardson then presented a petition for an allowance for ......
-
Schumacher v. Draeger
...were the following: Begole v. Hazzard, 81 Wis. 274, 51 N. W. 325;Whiting v. Gould, 2 Wis. 552; sections 2071, 2073, 2075, St. 1898; Tyson v. Tyson, 96 Wis. 59.71 N. W. 94;Loring v. Palmer, 118 U. S. 321, 6 Sup. Ct. 1073, 30 L. Ed. 211;Tyson v. Richardson, 103 Wis. 397, 79 N. W. 439;Schreyer......
-
Perkins v. Burlington Land & Improvement Co.
...Sullivan v. Bruhling, 66 Wis. 472, 29 N. W. 211. To the same effect, Hannig v. Mueller, 82 Wis. 235, 243, 52 N. W. 98; Tyson v. Tyson, 96 Wis. 59, 71 N. W. 94;Ruth v. Oberbrunner, 40 Wis. 238. But we are clearly of the opinion that the trust deed to Dr. Dyer did not create, nor attempt to c......
-
Eggleston v. Swartz
...Slingerland, 103 N. Y. 47, 8 N. E. 247, 58 Am. Rep. 701;Hennessy v. Patterson, 85 N. Y. 91;Buel v. Southwick, 70 N. Y. 581; Tyson v. Tyson, 96 Wis. 59, 71 N. W. 94. The estates created by the will do not suspend the absolute power of alienation for more than two lives in being at the creati......