In re Luscombe's Will

Dodge, J. 1. Respondents move to dismiss the appeal on .two grounds: first, that the executors, as such, have no interests to be affected by the final order of distribution, and are not aggrieved thereby; second, that one of the co-trustees or co-executors cannot appeal alone, hence no jurisdiction is conferred by his attempt to do so. The first ground of the motion seems to be in oversight of the fact that the executors are also trustees, and that the appeal is in both capacities. As trustees they are beneficiaries under the will, to receive nearly one half of the testator’s estate, to hold and administer the same for the benefit first of Robert Lusaombe and Nellie M. Sanger, but also for the ultimate benefit of yet unascertained persons, including unborn children of. either Robert or Mrs. Sanger. If the judgment appealed from is wrong, and the'corpus of the half of the trust estate is not yet properly distributable to Mrs. Twrner and Mrs. Wright, then it denies these trustees property which it is their duty to acquire and keep,— for the benefit of others, it is true; but in demanding and acquiring it they are the representatives of those others, and both entitled and bound to vindicate their rights. Tyson v. Tyson, 94 Wis. 225; Jamison v. Adler-Goldman Co. 59 Ark. 548. It matters not that all persons now in existence who are beneficially interested in the conduct of the trustees have consented that they yield to the judgment of the circuit court. Those officers still owe a duty to possible unborn children, whose rights cannot be cut off by consent. Ruggles v. Tyson, 104 Wis. 500. That duty is one of diligence to protect such helpless ones, and for breach of such duty, negligence, or laches, the trustees may in the distant future be called to account. Clearly, they and those whom they represent are — 194 — deprived of property by the decree appealed from, and are aggrieved if it be wrong. Whether one of the two co-executors or co-trustees can appeal without the other is a question seemingly undecided,— at least, no direct authority is cited by either party, nor has extended research on our part disclosed any. Respondents’ counsel presents, as analogous, the rule with reference to writs of error to review joint judgments. If analogy exists between appeal and writ of error, it is fatal to this ground of motion; for the rule requiring joinder of all those against whom the alleged erroneous judgment stands is one of practice merely, and does not go to the jurisdiction nor to the power of one to institute the proceeding, so far at least but that the court has control of the subject by severance or by amendment. Harrington v. Roberts, 1 Ga. 510; Hardee v. Wilson, 146 U. S. 119. And the objection is one which, unless promptly made by motion to quash or dismiss the writ, will ordinarily not be considered. Huebschmann v. Cotzhausen, 107 Wis. 64. Upon the rule of this case a motion to dismiss even a writ of error would probably be overruled under the circumstances of the motion under consideration, which was not presented until the case was' reached for argument. We do not, however, discover much analogy between the question of joinder in writ of error of all joint judgment defendants, and that of the power of one of two joint trustees to arouse our jurisdiction by a statutory appeal. The former is a question of practice in a new suit, originally instituted in this court by a common-law writ. The latter must be answered from consideration of the powers of joint executors and trustees generally, and from the statutes prescribing our jurisdiction, and the method of invoking it by appeal,— a proceeding in the original suit. Northwestern M. L. Ins. Co. v. Park Hotel Co. 37 Wis. 125, 131. Addressing ourselves to the latter consideration, it seems to be pretty — 195 — well settled that statutory appeals are not subject to the rule of joinder which controls writs of error, and if the only objection here were failure to join as appellants all of the joint judgment defendants, independently of /their co-trusteeship, Ave should have little hesitation in overruling it. Mattison v. Jones, 9 How. Pr. 152; People ex rel. Keal v. Wayne Circuit Judge, 36 Mich. 331; Northwestern M. L. Ins. Co. v. Parle Hotel Co. 37 Wis. 125, 133; Hunter v. Bosworth, 43 Wis. 583, 590; Hardee v. Wilson, 146 U. S. 179. Turning then to an examination of the power of One of several joint trustees or executors, the underlying and general principiéis that the trust is imposed on all jointly; that all together constitute but one collective person for the purpose of executing it; and, as a corollary, that the act of any •of them, less than all, is not the completed act of that collective person and is ineffectual. 1 Perry, Trusts, § 411. The application of this principle to its full extent is not universal. 1 Perry, Trusts, § 411 et seg.; 2 Woerner, Administration, § 346 et seg.; Weir v. Mosher, 19 Wis. 311, 316. In the main, however, any substantial affirmative act — such, for illustration, as the conveyance of property — requires the joint action of all in order to have any validity. The application of this rule is comparatively easy to affirmative acts, omission of which AArould work no change in the property or estate, but becomes difficult Avhen considering certain acts, omission of which has quite as direct effect as would the act itself. Among these latter fall the bringing of suits to recover or conserve property. Omission to sue may defeat a just claim, either by suffering the bar of limitation statutes or by insolvency of a debtor. It may effect the practical surrender or transfer of property. Thus it is apparent that the literal application of the rule to such cases may work the exact converse of its intention; for thereby one trustee, by refusing to act, might in practical effect accomplish release of a debt or conveyance of property without the con — 196 — sent of his co-trnstee. It is not surprising, therefore, that courts, while recognizing the rule of practice that joint trustees must join as plaintiffs, have also recognized the necessity that one trustee may invoice the aid of courts for protection of the trust estate, although his co-trustee refuse to join with him. Trustees are under the control of courts of equity, and it would be strange indeed if such courts could not protect against devastavit by the laches of one of several joint trustees. The ability of one to move alone under such 'circumstances is essential, not only to protect the estate, but also to protect himself from liability which might otherwise fall on him if valuable rights were lost through inaction •when action is a duty. Crane v. Hearn, 26 N. J. Eq. 381. All of the following authorities decide or recognize the possibility of one trustee arousing the jurisdiction of courts in some form when he differs from a co-trustee as to the proper course: Perry, Trusts, §§ 411, 417; Bockes v. IIathorn, 78 N. Y. 222; Thatcher v. Candee, 4 Abb. Dec. 387, 391; Portis v. Creagh, 4 Port. (Ala.), 332, 343; Reno's Ex’rs v. Davis, 4 Hen. & M. 283, 288; Todd v. Daniel, 16 Pet. 521; Weetjen v. Vibbard, 5 Hun, 265, 267. Among these citations are cases insisting upon, the necessity of joinder of all trustees as a rule of practice, but recognizing that such rule does not deny the power of one to arouse the jurisdiction of the court, either by action in the name of all without their consent, or by suing alone, in which case the defect of parties may be cured by amendment. Our statute (sec. 2604, Stats. 1898) provides a method of avoiding that rule of practice, and a substitute for the ancient procedure by summons and severance, in the simple' expedient in all actions of making defendants of those in joint interest who refuse to join as plaintiffs. It seems certain, therefore, both on reason and authority, that one joint trustee is not without power to invoke the aid of courts for protection or recovery of the estate, when, — 197 — in his judgment, neglect to do so would be a breach of duty. Of course, in such case he must, as matter of practice, excuse the nonjoinder of his co-trustee, and. bring him before the court as a defendant. Equally of course, he acts in peril of being denied reimbursement of his expenses if he litigates not in good faith, or without grounds to reasonably justify his judgment; but neither of these considerations goes to his power, nor to the power or jurisdiction of the court. With this view as to the power of one joint trustee to originate litigation, we cannot doubt his power to invoke the appellate jurisdiction of this court under like limitations. An appeal is certainly no more extreme an act than the original commencement of action, even if we look upon it as the equivalent of writ of error, as some courts seem to. In this court, it has been said that appeal is but one step in a suit towards the final adjudication which the law has provided for. Northwestern M. L. Ins. Co. v. Park Hotel Co. 37 Wis. 131. If this view be adopted, the power of the single trustee would seem all the more obvious. We conclude, therefore, that if the appellant, in good faith and on reasonable grounds, believed that the decree of the circuit court deprived the trust estate of property belonging to it, he had the power to appeal, notwithstanding the contrary opinion of his co-trustee, and that all parties in interest, including such co-trustee, being before this court, we have jurisdiction to consider the merits of the appeal, and that the motion to dismiss must be denied. 2. As appellant’s counsel forcibly suggests, the decree before us presents at first glance the appearance of awarding Robert Luscombe the entire corpus of an estate which • the testator clearly intended not to give him, but to tie up in the hands of trustees so that Robert should receive only the income. That appearance is, however, deceptive, and disappears upon any more than the most superficial examination. Absolutely nothing is awarded Robert under the will — 198 — or by way of gift from bis father. The corpus of the trust estate is by the final order assigned and distributed to the widow, Seville, and to Mary J. Wright, to whom, as is entirely obvious, the testator intended to give it upon a certain contingency. The fact that they have assigned it to Robert, as a method of making a gift from themselves to him, can no-more be said to thwart the will than if the widow had chosen to give him, by assignment, a part of her $35,000 legacy,— no more, indeed, than if both the widow and Mrs. Wright had received payment direct to themselves, and presented' Robert with their checks for the. amount. We must therefore dismiss the consideration that he by their bounty receives the actual payment from the executors, and consider the situation as if the decree not only assigned this disputed share to Mrs. Turner and Mrs. Wright, but ordered it paid to them as well, and as if they were the respondents contending for it here.- Passing then to a consideration of their rights under the will, we are confronted with the direct and positive command : “ In case any proceedings are instituted for the purpose of reaching the income so provided for, and of diverting it from the object intended by me, and a decree or judgment obtained for that purpose, that then from that period all payments from the said income to them [Robert and Nellie'], or either of them, shall cease; and I direct my executors and testamentary trustees, ... in case there is no lawful issue of them [Robert or Nellie'], or either of them, living, then to distribute to my daughter Mary J. Wright and my said wife and their issue as hereinbefore provided.” This behest is mandatory, and quite as unambiguous as is the declaration of a purpose and design to provide for either Robert or Nellie the necessaries of life without subjecting either the estate or income to their control. It cannot be ignored. If it is in conflict with the declaration of design, it must dominate both because it is — 199 — mandatory and because it is the later provision. Cassoday, Wills, § 683. But it does not necessarily conflict with such general design, but merely implies a limit thereto. Such direction may indicate either that the testator considered such design hopeless or impossible of accomplishment in favor of a cestui que trust subject to such a judgment. Hopeless, because after money reached his hands it could not have lull eiflciency in providing necessaries of life to one embarrassed by attacks or harassed by solicitations of creditors, to whom portions of the testator’s bounty would probably be diverted. Impossible, because, as testator may' have believed or been advised, such a judgment creditor could reach and absorb the trust property or income unless such cesser and bequest over were provided for in the will. Whether or not such belief, if it existed, was well founded, we need not decide. It ivas by no means unsupported by respectable authority. Bramhall v. Ferris, 14 N. Y. 41; Bull v. Kentucky Nat. Bank, 90 Ky. 452; Perry, Trusts, § 388; and Bridge v. Ward, 35 Wis. 687. These might well justify the extreme precaution, although, as appellant’s counsel forcibly argues, there is a considerable weight of authority to the contrary, as cited to us by appellant. Nichols v. Eaton, 91 U. S. 716; Garland v. Garland, 87 Va. 758; Nickell v. Handly, 10 Grat. 336; Roberts v. Stevens, 84 Me. 325; Broadway Nat. Bank v. Adams, 133 Mass. 170; Hall v. Williams, 120 Mass. 344,— the rule of which had not, however, been adopted in Wisconsin. Whatever may have been the testator’s motive, however, it was clearly his purpose that Robert Lxiscombe should enjoy the income of one half of the trust estate only until the happening of the contingency defined above, and that upon that contingency, he being without issue, the widow and Ma/ry J. Wright should receive the corpus of the estate. It remains, then, to ascertain whether the record discloses that the specified contingency has occurred. — 200 — It appears — indeed, is found by the court without exception— that, upon recovery of a judgment at law and return of unsatisfied execution, action was commenced by Goodwin “for the purpose of subjecting the interest of Robert m. the income bequeathed for him in trust by said will to the payment of said judgment, and that in the action last mentioned a decree or judgment was entered in form subjecting the said interest of Robert Luseombe to the payment of said Goodwin judgment.” This would seem at first glance so direct an afiirmative answer to the question as not to leave room for discussion, but appellant with much force-insists to the contrarjL He urges, first, that the proceeding and judgment taken and recovered by Goodwin, as matter of law, cannot have been for the purpose of reaching and diverting the income of the trust estate, within the meaning of the will, because it could not have that effect, since the will itself puts both estate and income beyond the reach of such proceeding and judgment. This reasoning is faulty, in that it deprives this clause of the will of all significance. It attributes to the testator the. absurdity of providing a limitation over upon a contingency which he by the same will makes impossible. Certainly when the testator described the class of judgments upon recovery of which important rights were to vest, he intended to describe such as might exist, and might exist, too, without having the effect to divert any of the estate or income to the judgment creditor,— a result guarded against with the utmost precaution. He did not make the limitation over depend on recovery of a judgment which might or would reach and divert the income, but of one having such purpose. The judgment in favor of Goodwin goes as far'in that direction as any judgment can. It, in form, subjects that income which the will gives Robert to the payment of the Goodwin judgment. It evinces the purpose and exhausts the ability' of both the plaintiff therein and the court rendering it to reach that — 201 — income. If it fails, that result comes from the withdrawal of the income and the estate from its reach, and from Robert's reach as well, not from any want of purpose on Goodwin’s part. We can entertain no doubt that it is of the class of judgments contemplated by the testator and described by him. A further contention that this particular judgment, as matter of law, cannot be recognized as having a purpose to reach and divert the income, rests upon the premise that it cannot effectuate that result in the absence of the trustees as .parties to it. That premise, however, is unsound. It may be conceded that no decree could be effectual to control the conduct of the trustees, nor the estate or income while in their hands, unless they were made parties. Such are the cases cited by appellant. O'Hara v. MacConnell, 93 U. S. 150; McArthur v. Scott, 113 U. S. 340. But such judgment or decree is binding personally on Robert and can compel him, under penalty for contempt, to hand over the semiannual instalments of income the moment he receives them; thus, in practical effect, reaching that income and diverting it from Robert's support to the payment of Goodwin’s judgment. The nonjoinder of the trustees is, however, one of several very significant evidentiary facts bearing on the purpose which Goodwin actually had in the proceedings prosecuted by him. That omission, when joined with the consideration that Robert, apparently without necessity, suffered judgment and supplementary creditor’s suit on so trifling a claim (less than $200), and that those acts did not occur till after his arrangement with the widow and Mrs. Wright assuring him benefits upon the termination of the trust, might well arouse suspicion, if not justify belief, that the whole proceeding was collusive between him and Goodwin, and not in good faith for the purpose of reaching and diverting the trust income to Goodwin’s judgment. That question, however, is not open on this appeal, since the purpose of the proceeding is established by a finding of the — 202 — circuit court to which, there is no exception, and which therefore must conclude us as to the question of fact. The views thus expressed sufficiently indicate the conclusion we must reach, namely, that the contingency was presented upon which the limitation over to Mrs. Turner and Mrs. Wright was to take effect. That conclusion supports,, in general, the decision and judgment of the court below. Whether all the details of that judgment are strictly correct, we need not consider, for it is assailed only in its general scope, and, as we concur with it in that respect, we must affirm it. We see no reason to doubt the good faith of the appellant executor and trustee in seeking the opinion of this court before surrendering so large a portion of the estate intrusted to him; hence the statutory costs of both parties in this, court are ordered paid out of the estate. By the Court.— Judgment affirmed.