Upham v. Plankinton

• Decision Date: 20 February 1913
• Parties: UPHAM ET AL. v. PLANKINTON, JR., ET AL. (TWO CASES).
• Court: Wisconsin Supreme Court

152 Wis. 275

140 N.W. 5

UPHAM ET AL.

v.PLANKINTON, JR., ET AL. (TWO CASES).

Supreme Court of Wisconsin.

Feb. 18, 1913.

Dissenting Opinion Feb. 20, 1913.

Syllabus by the Judge.

John Plankinton, by will, caused the title to a large amount of valuable, leasable and leased real estate to be vested in trustees for a long indefinite term with manifest intent that such title should, ultimately devolve upon or be conveyed to specified beneficiaries. Power to sell was impliedly withheld from the trustees. In respect to the title, vested, contingent, actual, expectant, and possible interests were created, and persons in esse as well as in possibility were made objects of the testator's bounty. The “entire, control, management and charge of the estate” was “committed” to the trustees to administer for the purpose of producing revenue without parting with title during the trust. They determined that replacements of buildings and long leases extending beyond the possible existence of the trust were necessary, and proceedings to that end were commenced under chapter 300, Laws of 1899, and an action in equity as well. Authority as prayed for was granted in both upon the ground that it was for the best interests of all the beneficiaries. Strict regard was not had as to whether power existed to do so under the will.

Every person of mature age and sound mind has an inherent right, conformable to reasonable regulations, to make his own will and have it carried out according to his intent.

It is judicial duty whenever properly invoked to discover, if practicable, the real intent expressed in a will and enforce it.

Testamentary intention is determinable, solely, from the will, read in the light of its characterizing circumstances, aided by written and unwritten rules for solving uncertainties.

Neither written nor unwritten rules, nor the discretion of beneficiaries or courts can legitimately change a testamentary intention.

A valid trust in property created with intention expressed or necessarily implied, that it shall endure for a specified time and for specified objects, is due to be carried out according to such intent.

A trust created by will for designated persons cannot be changed by their trustee, or the court, to better promote the interests of the beneficiaries--the judgment of the settlor in respect to the matter is the law of the trust.

In every trust in property, unless accompanied by unmistakable prohibition, there is an implied purpose, that the subject may, to prevent destruction thereof and defeat of the trustor's purpose, be changed from one kind into another, and the equivalent administered in place of its antecedent; but always to the end originally specified.

In executing the implied intent of a trustor, the court may act upon the interests of remaindermen, interests vested and contingent, and interests of persons in esse and those in possibility, so as to change the title absolute, transferring the interests of every nature from the original subject to its equivalent.

The Legislature cannot, legitimately, abrogate the right to have a trust in property carried out according to the purpose of the settlor, and an enactment which, in its letter, might seem otherwise, is not to be construed as attempting to do so unless the contrary is unavoidable.

Chapter 300, Laws of 1899, purporting to authorize conversion of realty into personalty and administration of the equivalent, regardless of the character of the interests therein,--vested, contingent, actual or possible,--does not apply to property held in trust with specified directions as to its administration and disposition.

If a trustee is given full control of real estate to produce revenue therefrom and is not empowered to sell the property, he may execute the trust by creating leasehold estates therein of any reasonable duration which the trustor might fairly have had in contemplation.

In the circumstances stated in No. 11, a trustee, with judicial advice, may create a leasehold estate extending beyond the termination of the trust.

Where the “entire control, management and charge” of realty is “committed” to a trustee, primarily, to administer it so as to produce by rentals the greatest practicable amount of net revenue, and the trust is to extend, in probability, over a long but uncertain term, the trustee may, by approval of the court having jurisdiction of the matter, execute the trust by creating leases to continue beyond the life of the trust, even to a term of ninety-nine years if such term is reasonable under all the circumstances as the trustor might probably have regarded the matter when he created the trust.

The power to lease as indicated in No. 13 is not one to vary or violate the trust but one to execute it; therefore when it is negatived in the language of the trust, either expressly or by necessary implication, it does not exist by intention of the trustor and cannot be supplied by the discretion of the trustee either with or without judicial aid.

In all matters, out of the ordinary, of administering a trust which call for or render advisable judicial aid, the court must place itself, as near as may be, in the place of the creator of the trust at the time of its origin and speak by his implied direction.

The creation of a leasehold estate for any term, consistent with approved methods of handling similar property under similar conditions, is not equivalent to a transfer of the title and does not violate an express or implied prohibition in that regard.

If a judgment be right on the evidence and the facts found it will be affirmed regardless of whether the reason assigned for it by the trial court is sound.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Special proceeding and suit in equity by H. A. J. Upham and another, as trustees, against William Woods Plankinton, Jr., and others. From an order granting the petition in the special proceeding, and from a judgment for plaintiffs in the suit, defendants appeal. Order reversed, and cause remanded for dismissal, and judgment affirmed.

The order was in a special proceeding commenced under chapter 300, Laws of 1899, as amended, for authority to make a 99 year lease of interests created in certain real estate by the will of John Plankinton, deceased, the legal title being vested in testamentary trustees and there being beneficiaries in esse and others in possibility.

Barnes and Vinje, JJ., dissenting.

The petition was made by the trustees. It was granted. The statute, in terms, authorized judicial permission, for any of the reasons specified in section 3503 of the statutes, to sell, mortgage, lease, or otherwise dispose of any real estate or interest therein owned or possessed by any person whether in being or not, known or unknown, under and by virtue of any deed or other instrument or any last will and testament, the proceeds, less the costs of proceedings, to have the cost of real estate and take the same direction as the property equivalent would have taken had the sale not been made, and be invested or disposed of under the direction of the circuit judge for the benefit of the person, or persons, who may be or may become interested in the subject of the sale under the various sources of title,--deed, will or other instrument,--such proceeds and the income thereof to be at all times under the direction of the court.

The proceeding was in conformity to the statutes. The ground for the assistance asked for and granted was that the petitioner believed “it would be for the best interests not only of those persons having present interests in said real estate, but also of all persons now living or yet unborn who have or may have any contingent interest in such real estate, or any part thereof.” The will of Mr. Plankinton took effect March 29, 1891. He died at his residence in Milwaukee, Wisconsin. In respect to the real estate affected the court found:--

(1) The Plankinton House property is of the approximate value of $2,600,000, without counting the buildings which, under the circumstances are of no value. The land fronts 420 feet on Grand avenue in the city of Milwaukee and extends back 200 feet. It is covered by a building used, in the main, for hotel business. It will require $3,000,000 to adequately improve the property. It is extremely difficult to secure a tenant to undertake that. The hotel is being conducted for the benefit of the estate. The income of the Plankinton House property, otherwise, would be less than $20,000. The value of the land has greatly increased since the testator's time, resulting in fifty per cent. increase in taxes. The buildings are unfit for modern conditions and will not warrant the expense of putting them into good repair and keeping them so. Had they been in good condition for 1911, the net income would have been less than $75,000, subject to deductions for part of the $42,500 of annual interest on the mortgage which covers such and other property. Because of danger from fire, limit reached of income from portions not used as a hotel, peril of a competing hotel in the vicinity being established and incapacity of the estate to replace the structures, something of a radical nature is essential to preserve the value of the property and make it efficient as an income producer. All parties presently, or contingently, directly or indirectly interested would be benefited by leasing the same for 99 years on such terms as would insure realization of the testator's purpose to perpetuate the hotel business and promote the welfare of such parties.

(2) The Boston Store property is at the southeast corner of Fourth street and Grand avenue, and is 200 feet on the first and 160 feet on the second street. The building is under lease to a corporation for department store purposes. It is more suitable for manufacturingpurposes. It does not constitute a suitable improvement of the land which is best adaptable for retail mercantile business. It is...