Opinion
February 7, 1951 —
March 6, 1951.
Appeals from an order of the county court of Dane county: GEORGE KRONCKE, JR., Judge. Affirmed in part; reversed in part.
For the plaintiff there was a brief by Stephens, Cannon, Bieberstein Cooper, and oral argument by Frank M. Coyne, all of Madison.
For the defendant Clarke A. Austin there was a brief by Backus Backus of Milwaukee, and oral argument by August C. Backus.
For the defendant First National Bank of Madison, trustee, there was a brief by Hammond Hammond of Kenosha, and oral argument by Walter W. Hammond.
Margaret R. Newport, the petitioner, was the former wife of the respondent, Clarke A. Austin. They were divorced by a judgment of the circuit court for Dane county entered June 7, 1943. The petitioner was awarded custody of Robert Clarke Austin, the minor son of the parties. The judgment directed the respondent, Clarke A. Austin, to pay to the petitioner the sum of $100 per month as alimony and the sum of $50 per month as support money for their minor son. The provisions of the judgment as to the payment of alimony and support money were pursuant to a stipulation entered into on May 29, 1943. Mary B. Austin, the mother of said Clarke A. Austin, guaranteed the payment of the alimony and support money for a period of five years after June 1, 1943. Said Mary B. Austin died testate on January 27, 1945. Her will was duly probated and the final judgment in her estate was entered on February 5, 1946.
By the terms of said will the residue of the estate was given, devised, and bequeathed in trust. The First National Bank of Madison was appointed as trustee of said testamentary trust. The terms of the trust provided that, after payments upon a mortgage and other expenses, the net income should be divided by the trustee and paid in equal shares to the respondent, Clarke A. Austin, and to Grace G. Gray, a daughter of decedent. After the death of either, the income is to be paid to his or her children. What is commonly known as a "spendthrift trust" was established by the following language in the will:
"The provisions herein made are intended for the personal protection and welfare of the beneficiaries hereunder and shall not be susceptible of assignment, anticipation, hypothecation, or seizure by legal process. Whenever and if the trustee shall have notice or shall reasonably apprehend that the interest of a beneficiary has been or is threatened to be diverted from said defined purposes in any manner aforesaid or otherwise, the trustee shall withhold the income and principal of such beneficiary from distribution and shall apply the income of such beneficiary and the sums of principal available in its discretion as aforesaid by such means and in such manner as it shall deem expedient in such beneficiary's interest, to the support, maintenance, comfort, and welfare of such beneficiary. Whenever and if the trustee shall be reasonably satisfied that such diversion is no longer effective or threatened, it may resume the distributions of income and principal primarily authorized and directed. Nothing herein contained shall be construed to extend the ultimate term of any trust hereunder as hereinabove defined."
This proceeding was instituted by the petition of Margaret R. Newport for a construction of the will of Mary B. Austin, deceased, and for an order directing the trustee of the testamentary trust created by said will to pay over to the petitioner a portion of the income which Clarke A. Austin receives from said trust as a beneficiary thereof in payment of petitioner's claim against him for accrued alimony and support money. In the proceedings a guardian ad litem was appointed by the court for said Robert Clarke Austin, a minor. An order was entered August 2, 1950, dismissing the petition, but directing the trustee to pay certain fees to said guardian ad litem. The petitioner appeals from that part of the order dismissing her petition, and the trustee appeals from that part of the order allowing fees to the guardian ad litem.
We have recently held in three cases that the county court has no jurisdiction to construe a will after the time has expired to appeal from, or move to modify or set aside, the final judgment in an estate. Estate of White, 256 Wis. 467, 41 N.W.2d 776; Estate of Larson, 257 Wis. 579, 44 N.W.2d 535; Estate of Lenahan, ante, p. 404, 46 N.W.2d 352. That time had expired when this proceeding was instituted. The county court had no jurisdiction to hear appellant's petition to construe the will. The county court treated the petition as one for the construction of the final judgment in the estate, which it was not. In its memorandum decision the trial court said:
"The will plainly states that the provisions made for the benefit of Clarke A. Austin are for his `personal protection and welfare;' that they are not subject to `seizure by legal process,' and that the trustee is required to `withhold income and principal' whenever it appears that the interest of the beneficiary is faced with a threatened diversion. I am of the opinion that this clearly empowers the trustee to withhold payments to petitioner; in fact, makes it mandatory on the trustee so to act. I find that such testamentary disposition is lawful, and it is therefore the duty of this court to see that it is carried out."
Had the matter been properly presented, we would agree with the determination of the county court. Although the rule here applied seems harsh, proper proceedings can easily be instituted to raise the same issues sought to be accomplished by belated applications to construe a will. We do not feel that the strict enforcement of the rule announced above will deprive anyone of any rights he may have, particularly under a testamentary trust. The trial court dismissed the petition upon the merits and thus reached the right result, although it should have been dismissed for want of jurisdiction.
The guardian ad litem was appointed for Robert Clarke Austin on the ground that he was a minor interested in said estate. Later the same person was appointed as attorney to represent him in the proceeding because he was in the military service of the United States. Said minor was not a party to the action. The object of the action was not to obtain anything from him or for him. If any money had been recovered from the income due to Clarke A. Austin it would have belonged to the petitioner. As the minor was not a party to the action, had no financial interest in the outcome, and as the court had no jurisdiction to hear the petition, no guardian ad litem or attorney should have been appointed for him. In addition, the trustee has no fund out of which to pay the fees allowed. The income due to Clarke A. Austin cannot be reached for the purpose asked nor for the payment of fees. The payment of the same out of the corpus of the trust would adversely affect the interests of others not parties to the litigation. That part of the order directing the payment of fees to the guardian ad litem is therefore reversed.
By the Court. — That part of the order dismissing the petition is affirmed. That part of the order directing the trustee to pay fees to the guardian ad litem is reversed. Cause remanded with directions to enter an order in accordance with this decision.
FAIRCHILD, J., concurs in the result.