Opinion
November 9, 1955 —
December 6, 1955.
APPEAL from an order of the circuit court for Fond du Lac county: RUSSELL E. HANSON, Circuit Judge. Affirmed.
For the appellants there were briefs and oral argument by Erwin Esser Nemmers of Milwaukee.
For the respondent Marshall Ilsley Bank there was a brief by Tonjes Mortensen of Fond du Lac, and oral argument by John C. Tonjes.
For the respondents Madeleine Boyle Saffouri Henning and Helen Marie Boyle Schmitt there was a brief and oral argument by John J. Schneider of Fond du Lac.
George M. St. Peter of Fond du Lac, guardian ad litem for minor natural children of Francis H. Boyle and grandchildren.
Petition dated May 25, 1954, by Marshall Ilsley Bank, acting trustee of the trust created by Julia G. Boyle, for an order determining, among other things, the person or persons having an interest in the corpus of said trust. The question particularly raised is whether the adopted children of the settlor's son, Francis H. Boyle, share as children under the terms of the trust. The controlling evidence on the questions to be determined is contained in the instruments executed by Julia G. Boyle. A sufficient reference to those instruments follows:
(a) The original trust agreement, dated June 1, 1928, created an irrevocable trust between the donor and her son Francis. It provided that the income from the corpus was to be paid to her only son, Francis H. Boyle, and upon his death was to revert to the donor. It also provided that the trust was to terminate upon the death of the donor. At that time the corpus was to be turned over to and distributed in the donor's estate.
(b) The will of Julia G. Boyle, made October 14, 1930, contained the clause "throughout this will the word `issue' shall be construed to mean in each case legitimate child, children, grandchildren, great grandchildren, or great, great grandchildren by blood respectively and not by adoption or otherwise."
(c) On November 30, 1931, an amendment to the original trust agreement was made by consent of the donee. This modification reads:
"The said trust of June 1st, 1928, shall continue as it now exists, without change, until the county court of Fond du Lac county, Wisconsin, shall enter the order of final settlement in the regular probate proceedings in my estate, after I shall have passed away; from and after the date of the entry of said order of final settlement in the regular probate proceedings in my estate, my son Francis H. Boyle, shall receive only one half of the income of said trust created in the instrument attached hereto and dated June 1st, 1928, and the trustee or trustees of said trust shall retain the other one half of said income of said trust and shall add it to the corpus of said trust, of which corpus it shall thus become and remain a part."
(The original trust agreement provided that the payment of the income to Francis H. Boyle was to stop at the death of his mother. The foregoing extended the time of the payment until the settlement of the estate.)
(d) On August 10, 1933, a codicil to the last will and testament of Julia G. Boyle was executed, naming Marshall Ilsley Bank as trustee, and in article Fifteenth of the codicil it is declared:
"I have at the time of the preparation and execution of this codicil gone over my said last will and testament and I herewith express my full satisfaction with the terms and provisions thereof, except as modified by the terms and provisions of this codicil; and therefore I herewith solemnly confirm the provisions of my said last will and testament, as modified by this codicil."
(The codicil did not change Julia Boyle's declaration of intention to exclude adopted children.)
The circuit court determined that in using the term "issue" and in using the term "children" Julia G. Boyle, in creating the trust and the modification thereto did not intend to include adopted children as beneficiaries of the trust estate. Robert Boyle and Barbara Boyle Nielsen, the adopted children of Francis H. Boyle, appeal from the order duly entered.
The instruments mentioned in the above statement are so related to the purposes of the creator of the trust that they must be considered of controlling significance. Julia Boyle, in June, 1928, formed her plan to meet problems then existing and those which in her judgment might develop. On June 1, 1928, she created a trust, the terms of which provided for the payment to her son, Francis H. Boyle, the income from that portion of her estate appointed as the corpus of the trust. The period during which payments were to be made was therein limited to the time from the creation of the trust to the date of the death of Julia Boyle. On October 14, 1930, Mrs. Boyle, the donor of the trust, made her will, and in it she expressly declared her intention to exclude adopted children. Following the execution of the will and on November 30, 1931, the trust agreement of 1928 was modified with the consent of the sole beneficiary, Francis H. Boyle. Both the creator of the trust and the donee were of full age and competent. Matthews v. Thompson (1904), 186 Mass. 14, 71 N.E. 93, 66 L.R.A. 421.
The appellants contend that when Francis H. Boyle consented to the modification of the trust agreement he thereby became cosettlor of the trust with his mother, and that, therefore, if his intention was to include his adopted children, that intention is to be considered in construing the trust as against the intention of his mother.
The matter to be considered, then, is whether the modification of the trust occurring as it did made Francis H. Boyle a cosettlor thereof. But for the modification, the death of Julia G. Boyle would have terminated the trust and the corpus would have reverted to her estate to be disposed of according to her will. But a person has capacity to create a trust by appointing property in trust to the extent that he has capacity to make an appointment free of trust. It was Julia G. Boyle who directly brought into existence the trust in 1928. She was the sole owner of the property out of which the trust res was carved. Francis contributed nothing to the corpus of the trust at any time. He was the donee and the sole beneficiary of the 1928 trust. No other vested interest was attached.
In 1931 Mrs. Boyle, the grantor or settlor, desired to modify the trust agreement to make provisions for the children of Francis. An amendment was drawn up and signed by Francis. The modification took nothing away from Francis but instead extended the period of time during which he was to receive the income from the trust corpus, from the time originally fixed to terminate at the death of Julia G. Boyle to the time of the settlement of the estate. In addition, it provided for payments to his children, who until then were not included. "Modification or amendment of a trust is ordinarily possible by parties in interest and against parties without vested interest." 54 Am. Jur., Trusts, p. 74, sec. 68. "When the original trustor undertakes to reshape or remold a trust, the original trustor is still the `grantor' of the trust estate regardless of the form that the reshaping or remolding of the trust may take." MacManus v. Commissioner (6th Cir. 1942), 131 F.2d 670. When Julia G. Boyle, with the consent of the sole beneficiary, Francis, amended the original trust, Francis was in no way made a settlor or donor or grantor of the interests created in his issue or children. This being so, it follows that whatever the intention of Francis may be with respect to the inclusion of the appellants is of no weight in the construction of the trust agreement. The proposition advanced by appellants that their status is equal to that of children of the blood is so lacking in substance that, when viewed in the light of the evidence referred to, in reason and under the authorities it must be denied. See 1 Scott, Trusts, p. 785, sec. 156.3; 1 Bogert, Trusts and Trustees, p. 270, sec. 41; Restatement, 2 Trusts, pp. 995, 1000, 1040, secs. 330, 331, 340, 357; Warsco v. Oshkosh Savings Trust Co. (1924), 183 Wis. 156, 160, 196 N.W. 829; Guaranty Trust Co. v. New York Trust Co. (1947), 297 N.Y. 45, 74 N.E.2d 232; Lehman v. Commissioner (2d Cir. 1940), 109 F.2d 99.
Julia G. Boyle, being the sole settlor of the trust, it is her intention which is controlling. Julia G. Boyle gave expression to her intention by expressly providing that "throughout this will the word `issue' shall be construed to mean in each case legitimate child, children, . . . by blood respectively and not by adoption or otherwise." The only conclusion warranted by that language is that Mrs. Boyle, the testator of the will and creator of the trust, did not wish her property to go to children outside the blood. The circumstances surrounding her at the time she executed her will on October 14, 1930, were the same as those surrounding her at the time of the modification of the trust instrument, which occurred thirteen months later, on November 30, 1931. At that time her natural beneficiaries included her son, Francis H. Boyle, and three grandchildren. There were no adopted grandchildren in November, 1931. The children involved were adopted in 1932 while the wife of Francis H. Boyle was living outside of the state. On August 10, 1933, Julia G. Boyle drew a codicil to her will. In that codicil she reaffirmed her declaration that adopted children were not to be included under the term "issue" as used in the will.
In Estate of Uihlein (1955), 269 Wis. 170, 176, 68 N.W.2d 816, the following language from Estate of Bradley (1925), 185 Wis. 393, 396, 201 N.W. 973, was set out and quoted with approval:
"`There are many reasons why an adoption statute should be strictly construed to . . . protect the adopted child. . . . These reasons, however, do not apply when the rights of those who were not parties to the adoption proceeding are involved. . . . One may have the right to assume the status of a father to a stranger of the blood, but he has no moral right to impose upon his brother [mother] the status of an uncle [grandmother] to his adopted son.'"
It is unnecessary to review the cases where descent may be controlled by the statute governing inheritance where the consideration of adopted children must enter in.
The order of the circuit court must be affirmed.
By the Court. — Order affirmed.