Opinion
April 2, 1964 —
April 28, 1964.
APPEAL from a judgment of the county court of Dane county: CARL FLOM, Judge. Affirmed.
For the appellant there was a brief and oral argument by Russell J. Mittelstadt of Madison.
For the respondents there was a brief and oral argument by A. E. Simonson of Madison. Laurence W. Hall of Madison also argued.
Appellant, the trustee in bankruptcy of Thomas J. Tantillo, petitioned the county court of Dane county for an order directing respondents, trustees of the trust created by the will of Clementina Tantillo, deceased, to pay the bankrupt's share of the trust estate to the appellant in his capacity as trustee in bankruptcy. One of the trustees of the trust, respondent Lena Tantillo, sister of the bankrupt, successfully established in the trial court that the bankrupt had assigned his interest in the trust to her as security for antecedent debts owed her by the bankrupt.
Clementina Tantillo died testate on April 1, 1958. Her will was admitted to probate June 24, 1958. The residuary clause established a trust in which her husband, Gaspare Tantillo, was the income beneficiary for life. Upon his death a portion of the trust corpus was given to establish another trust not relevant to this case. Article Sixth of the will provided:
"SIXTH, Upon the death of my huband, Gaspare Tantillo, or upon my death if he should predecease me, I give, devise and bequeath all the rest, residue and remainder of my estate and property, real, personal and mixed, to my five children, Joseph Tantillo, Thomas J. Tantillo, Lena Marie Tantillo, Frances Clementina Tantillo, and Margaret Mae J. Long, in equal shares. In the event one or more of my said children should predecease both my husband and myself and leave living issue, it is my will that the share or shares of said deceased child or children shall go, and in that event I hereby give, devise and bequeath said share or shares to my said executors, in trust, for said issue until they shall reach the age of 21 years, the said issue to take the parent's share by representation. But in the event one or more of my said children shall predecease both my husband and myself and leave no living issue, it is my will that the share or shares of said child or children shall revert to the corpus of my estate and go to my surviving children in equal shares or their respective issue, per stirpes, under the provisions of this paragraph."
On December 13, 1960, Thomas J. Tantillo filed a voluntary petition in bankruptcy in the district court of the United States for the Western district of Wisconsin. The schedule submitted with his petition listed no interest in any estate and did not list Lena Tantillo either as a secured or unsecured creditor. Lena Tantillo filed no claim in bankruptcy.
On May 4, 1962, Gaspare Tantillo died. On December 17, 1962, appellant petitioned for the order directing respondents to pay him the bankrupt's share of the trust estate. Respondent Lena Tantillo opposed the petition. She produced two undated pieces of paper which purported to list certain sums which she had advanced to her brother. At the bottom of each sheet of paper was a statement signed by Thomas Tantillo assigning his interest in the estates of his mother and his father to Lena, in consideration of sums which had been advanced to him and which might be advanced to him in the future. She also produced promissory notes made payable to her and signed by the bankrupt. The amounts of these notes were identical to the amounts listed on the purported assignments. The notes were dated April 15, 1959, and April 20, 1959. She testified that the assignments were made on April 15 and April 25, 1959. She further testified that the assignments were signed by the bankrupt in her presence, that of her brother, Joseph, and that of her deceased father. This testimony was confirmed by both Joseph Tantillo (her cotrustee) and the bankrupt.
The trial court found that the assignments were given on April 15, 1959, and April 25, 1959; that the trustee in bankruptcy had not carried his burden of showing that the assignments were fraudulent; and concluded that Lena had a lien superior to the trustee in bankruptcy in the amount of her debt plus interest. From a judgment accordingly, the trustee in bankruptcy appeals.
The only question before us in this case is whether the county court applied the proper test to determine the validity of the challenged assignments. The record will not support a conclusion that the assignments are tainted with legal fraud or fraud in fact under the Uniform Fraudulent Conveyance Act, ch. 242, Stats. Indeed, the trustee in bankruptcy does not argue that it will.
He argues that he was not required to show fraud in the transaction but only "vitiating circumstances," relying on Hofmeister v. Hunter (1939), 230 Wis. 81, 283 N.W. 330. That case involved the assignment of an expectancy. It was decided against the background of the historic reluctance of courts to enforce such assignments. See Graef v. Kanouse (1931), 205 Wis. 597, 238 N.W. 377.
But the assignment as it affects the bankrupt's interest in his father's estate is not before us. Here the bankrupt survived his mother. This was all that was necessary in order for his interest to vest under Article Sixth of her will. Vested or contingent, a future interest, as distinguished from a mere expectancy, is assignable under secs. 230.35 and 231.19, Stats. Meyer v. Reif (1935), 217 Wis. 11, 258 N.W. 391. See also Restatement, 2 Property, p. 601, sec. 163.
By the Court. — Judgment affirmed.
HALLOWS, J., dissents.