Opinion
May 10, 1951 —
June 15, 1951.
APPEAL from an order of the county court of Door county: ARCHIE McCOMB, Judge, Presiding. Reversed.
Edward G. Minor of Sturgeon Bay, attorney, and John E. Dempsey of Oshkosh of counsel, for the appellant.
For the respondents there was a brief by Zimmers, Randall Zimmers of Milwaukee, and oral argument by Wilke M. Zimmers.
Frank Borchert, a resident of the city of Sturgeon Bay, Door county, Wisconsin, died testate on the 7th day of January, 1942. His sole heirs at law were his widow, Madonna Borchert, and a son, Roderick, who was born April 25, 1929. His last will and testament, dated July 19, 1930, was duly admitted to probate. The provisions of the will pertinent to the issue raised in this case are as follows:
"Third: All the rest, residue, and remainder of my property, of whatever name, title, and description, and wherever situated, I give, devise, and bequeath to my friend and business associate, James A. Spalsbury, of Sturgeon Bay, Wisconsin, to have and to hold in trust, however, upon the following trusts, to wit:
"1. My said trustee shall assume charge of, manage, and control all of my estate not hereinbefore devised and bequeathed, and as such trustee he shall have full power and authority to do any and all acts necessary or expedient for the proper management of my estate, and I hereby expressly authorize and empower him to sell, assign, transfer, and convey any and all of my real estate and personal property, which may come into his hands or under his control, at any time or at any price he may deem advisable, and I hereby empower him to make, execute, acknowledge, and deliver all conveyances, assignments, indorsements, or instruments necessary for such disposition without first obtaining consent from any court so to do. My said trustee, in such capacity, may invest and reinvest, pay out, and dispose of moneys or other property. lease and re-lease, accept, surrender, and give notes, incur obligations, repair and improve real estate whensoever in his judgment it should become necessary so to do.
"2. To pay to my beloved wife, Madonna Borchert, the sum of two hundred dollars ($200) each month during her lifetime.
"3. To pay to my beloved mother, Minna Borchert, of Milwaukee, Wisconsin, the sum of one hundred dollars ($100) each month during her lifetime.
"4. To pay and expend in the support, maintenance, and education of any issue born to me and who are surviving at the time of my death, such sums from time to time during the term and continuance of said trust, and in such manner as my said trustee shall deem best.
"5. The term and period of the trust established by this my last will and testament shall be for the life of my beloved wife, Madonna Borchert, and upon her death my said trust shall terminate and expire.
"6. All payments to be made from my trust fund shall be from income, if sufficient, but if income at any time shall be insufficient, then such payments shall be made from the corpus of my said trust estate.
"Fourth: Upon the termination and expiration of my said trust, I give, devise, and bequeath all of the property belonging to said trust, both real and personal, in the following manner: To pay, convey, and distribute all of my said trust estate in the hands of my trustee at the time of the termination of said trust, as aforesaid, to my issue who may survive me at the time of the termination of my said trust estate, share and share alike, but in the event of my dying without issue surviving me, or thereafter born, to divide equally my said trust estate among and convey in equal shares to. my surviving brothers and sisters, Hans Borchert, Meta Zimmers, Johanna Mueller, and Ernst Borchert, to have and to hold for themselves and their heirs and assigns forever.
"Fifth: I wish that my beloved wife, Madonna Borchert, will consider the provisions hereinbefore made for her as in lieu of any and all claims against my estate and in lieu of her dower and homestead rights."
The widow elected to take the provisions made for her by law rather than by the will. The final decree, entered as of May 12, 1944, assigned one third of the residue of the personal property to the widow and two thirds to Joseph M. Schauer, as trustee for Roderick Borchert. Two thirds of the real estate was assigned to Joseph M. Schauer, in trust for Roderick Borchert, subject to the homestead rights of the widow, and the real estate so assigned, with the exception of the homestead, was charged with the payment of the sum of $100 per month to Minna Borchert, according to the terms of the will. Minna Borchert was paid the sum of $100 per month up to the date of her death, which was July 18, 1944.
On February 6, 1950, Madonna Borchert, as general guardian of Roderick Borchert, filed a petition to terminate the trust. Johanna Mueller and Meta B. Zimmers objected to the petition because, they alleged, the termination of the trust would be contrary to the terms of the will and also for the reason that the interest of Roderick Borchert was a contingent interest and not a vested interest. Roderick Borchert became of age on April 25, 1950, and on July 7, 1950, by court order, he was substituted as the petitioner herein. Following the hearing on said petition, and on October 19, 1950, the acting county judge sustained the objections and' entered an order dismissing said petition. The appeal is by said Roderick Borchert.
Upon the hearing on the petition, and upon this appeal, the appellant relied upon the case of Will of McIlhattan, 194 Wis. 113, 117, 216 N.W. 130, wherein this court said:
"`When the purposes for which an express trust shall have been created shall have ceased the estate of the trustee shall also cease.' Sec. 231.23, Stats.
"Upon the election of the widow and the death of Fred McIlhattan the purposes of the trust ceased, and the estate of the trustees also ceased under the statute quoted. It is a general rule of law that the election of the widow has the same effect as her death, and accelerates the remainders so that the beneficiaries enter directly into enjoyment thereof. 28 Ruling Case Law, 333; 2 Page, Wills (2d ed.), p. 2028; Sherman v. Flack, 283 In. 457, 459, 119 N.E. 293; Rench v. Rench, 184 Iowa, 1372, 169 N.W. 667; Ammon's Estate, 269 Pa. St. 159, 112 A. 69; McCollum v. McCollum, 108 Neb. 82, 187 N.W. 783; Hasseltine v. Partridge, 236 Mass. 77, 127 N.E. 429; In re Schulz's Estate, 113 Mich. 592, 71 N.W. 1079. This general rule of law does not apply if the terms of the trust expressly otherwise provide; that is. the intent of the testator must prevail if that intent is manifest from the will itself."
The trial court did not disagree with the rule but felt that the provision for the brothers and sisters of the deceased was a reason why the trust could not be terminated. The provision for the brothers and sisters is contained in paragraph "Fourth" of the will. It will be noted that said provision was made contingent upon the death of the testator without issue surviving him or thereafter born. The testator did leave a son, the appellant herein, surviving him and that defeated any contingent claim of the brothers and sisters. The interest of Minna Borchert, the mother of the decedent, terminated upon her death. Under the rule stated in Will of McIlhattan, supra, the election of the widow and the death of Minna Borchert, accelerated the remainder so that the sole remaining beneficiary, the appellant herein, should now enter directly into the enjoyment thereof. It was the evident intention of the testator to set up the trust for the protection of his widow and his mother. The purposes of the trust, after the election by the widow and the death of Minna Borehert, could not be carried out according to the will, and there is no object in continuing the trust until the death of the widow. There is no language in the will that would justify an inference that the trust should be continued until the death of Madonna Borchert for the protection of his son, Roderick Borchert, who is now of full age and competent. The general rule stated in Will of McIlhattan, supra, should be applied, and this requires a reversal of the order of the county court.
By the Court. — Order reversed and cause remanded with directions to enter an order granting the petition for termination of said trust.