Pabst v. Goodrich

Keewih, J. A preliminary question is presented aside from those raised by the assignment of error respecting the — 63 — jurisdiction of the court. It is urged that the decision of the ■second question propounded by the complaint involves a ■question of distribution only, and not one of construction, and should properly be left to the county court; hence the jurisdiction of the circuit court, and consequently this court on appeal, is questioned. The'number of shares of the stock •of the Pabst Brewing Company necessary to make $1,000,OOQ of book value is a question, in view of the peculiar facts in the case, upon which the executors are entitled to the aid of •the court. The circuit court has plenary jurisdiction of actions to construe wills and aid executors in the execution •of the trust, and the question presented is an important one to be determined in advance of distribution. The trustees are entitled to the protection of the court, and the fact that the question may arise in the county court on distribution is mo objection to the determination of the question when presented in the circuit court in an action for construction. Miller v. Drone, 100 Wis. 1, 75 N. W. 413; Burnham v. Norton, 100 Wis. 8, 75 N. W. 304; Stephenson v. Norris, 12S Wis. 242, 107 N. W. 343. We find no difficulty, therefore, an holding that the court below had jurisdiction to pass upon ■all the points involved in the action, and hence the questions are here on appeal. 1. It is urged by appellant that it was the intention of the testator that Elsbeth, during her minority, should receive -only her maintenance and education. This contention .involves the construction which should be placed upon certain articles of the will. It is insisted that but one trust was •created which took effect at the death of the testator, and that the duration of this trust was not limited to the lifetime of Mrs. Pabst. By the third article of the will the testator in plain and unequivocal terms bequeaths to his executors the substance of his property in trust during the life of his wife, among other things, to pay “all proper expenses for the suitable support and education of my granddaughter and — 64 — adopted daughter, Emma Maria Pabst, commonly called Els-heth Pabst, until she sliall arrive at tlie age of twenty-one-years, and to divide the net income of said property after-said payments, annually or at such times as may be convenient, in equal shares, among my children,” in manner provided,- and further provides that on the arrival of Elsbeth at the age of twenty-one years she “shall take an equal share-with the other of said children in said distribution of income, subject to the same conditions above provided.” The-fourth article provides for the division of the estate upon the death of testator’s wife into as many parts as there are-children, and that said parts shall be equal, excexit that there shall be transferred to the part designated for Elsbeth, as provided in the sixth paragraph of the will, such number of" shares of the capital stock of the Pabst Brewing Company as shall represent a book value of $1,000,000, so that said’ part shall exceed each of the other parts hv the amount of' said shares of stock. The sixth article expressly provides, that upon the death of the testator’s wife the shares intended for Elsbeth shall continue to be held in trust by the executors,, provided Elsbeth be living at that time, and the annual income paid to her during her life. The testator’s widow, Maria Pabst, died October 3, 1906, leaving Elsbeth living- and of the age of sixteen years. The court below found that Elsbeth was entitled to the income upon the portion bequeathed to her from the date of the death of the testator’s-widow. Whether the will be regarded as creating two trusts or one,, it is, we think, apparent that the testator had in mind a scheme of distribution covering two distinct terms: one during the life of his wife and the other afterwards. The bequest was in trust for the life of the testator’s wife, and upon her death, by the terms of the will, was to be divided into five-parts, three of which dropped out of the trust and the other two continued. The express terms in the third article of the65 will respecting Elsbeth bave reference to tbe period of time during tbe life of Mrs. Pabst, while those in tbe fourth and sixth articles refer to the rights which1 vested in Elsbeth under the will upon the decease of Mrs. Pabst. The provision in the third article for the support and education of Els-beth until she became of age and for the talcing of her portion of the income at her arrival at majority, followed by the provision in the fourth article that she take her share on the death of Mrs. Pabst, and the sixth article to the effect that the “remaining part of my estate” — that is, Elsbeth’s part — ■ shall continue to be held in trust if she be then living, and the income paid to her, seems to disclose the intention of the testator that Elsbeth, until she arrived at majority, should receive the provision made for her in the third article, provided Mrs. Pabst should live until that time; but if Mrs. Pabst died before Elsbeth attained majority, in such event Elsbeth was to immediately come into possession of her income. This construction of the will would give force and effect to all its parts and entitle Elsbeth, upon the death of Mrs. Pabst, to receive the income on her portion, whether she be then twenty-one years of age or not; the provision in the third article that she come into possession of the income when she arrived at the age of twenty-one having reference to the event of her arrival at majority before the death of Mrs. Pabst. In this way the words in each paragraph of the will may be given such force and effect as to harmonize the whole instrument and permit all parts to stand together, and we think, under the authorities, it should be given such construction. Deiv v. Kuehn, 64 Wis. 293, 25 N. W. 212; Lovass v. Olson, 92 Wis. 616, 67 N. W. 605; Davies v. Davies, 109 Wis. 129, 85 N. W. 201; In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786; In re Will of Kopmeier, 113 Wis. 233, 89 N. W. 134; Becker v. Chester, 115 Wis. 90, 120, 91 N. W. 87, 650. Giving the will this construction harmonizes the different provisions and appears to carry out — 66 — the intention of the testator. It is the duty of the court: .in ■construing wills to ascertain the intention of the testator, if that can be determined from the instrument itself, and in-seeking out the intention words are to be given their plain and ordinary meaning. Sherwood v. Sherwood, 45 Wis. 357; In re Donges’s Estate, supra; Davies v. Davies, supra; In re Moran’s Will, 118 Wis. 177, 96 N. W. 367; In re Boucks Will, post, p. 161, 111 N. W. 573. In harmony with these well-established principles respecting the construction of wills, we think that the testator intended Elsbeth should receive her support and education during the life of Mrs. Pabst and come into possession of her income on attaining majority, provided Mrs. Pabst should live until that time; but, in case of. her death before Elsbeth attained majority,, in such event Elsbeth should receive the annual income on her portion from the time of Mrs. Pabst’s death. This construction harmonizing the different articles of the will makes-it -unnecessary to consider other questions of construction respecting the rules of law that where two provisions are in conflict 'the latter prevails, and the rule that the law prefers a construction in favor of the early vesting of estates, and a vested rather than a contingent estate. We do not think a resort to these rules of construction necessary, because upon its face the will discloses the intention of the testator that Elsbeth should receive the income on her portion of the estate immediately, upon the death of Mrs. Pabst, and that the court below was right in giving it that construction. 2. The court below found that the number of shares- of the Pabst Brewing Company’s stock at book value necessary to make $1,000,000, to which Elsbeth was entitled, is 614.5502. The fourth article of the will provides that upon the decease of the testator’s widow “the entire estate shall be divided.” On October 3, 1906, the date of Mrs. Pabst’s death, the Pabst Brewing Company owned 3,322 shares of-its stock, and the question arises under this head whether the — 67 — stock so owned by tbe company should be regarded as retired and canceled, or whether it should be treated as outstanding. If it be x’egarded - as retired, Elsbeth would be entitled to 567.0689 shares, and if outstanding she would be entitled to 614.5502 shares. The court below found that she was entitled to the latter number, and found in detail the facts respecting the purchase of stock by the company and its manner of dealing with it, and found the stock had not been retired but was outstanding, and the appellants claim this was error. Ilere, again, we must refer to the rule that the intention of the testator is controlling. The Pabst Brewing Company, at the time of the execution of the will, had an authorized capital stock issued and outstanding of $10,000,000, divided into 10,000 shares of $1,000 each. The manifest purpose of the testator in the distribution of his bounty was to treat Elsbeth, his granddaughter and adopted daughter, the same as his other children. So he divided his estate into equal parts, and added to Elsbeth's portion shares of the capital stock of the Pabst Brewing Company sufficient to make $1,000,000 book value, and stated in his will as a reason for this that he had transferred by way of gift a like amount in book value of the stock for the benefit of each of his children, Gústame G. Pabst, Maña Goodrich> Frederick Pabst, Jr., and Emma Boehnlein, contemporaneously with the making of his will. The court below found that “said Pabst Brewing Company at all times, by its method of treatment of such 3,322 shares of purchased stock, regarded and held the same as part of its assets and as an asset on hand, and at all times prior to December 11, 1906, elected to treat the same as in force and in effect and as outstanding.” This stock was never canceled, but held and kept alive by the corporation. The corporation, being solvent, had the right to purchase and hold its own stock. Shoemaker v. Washburn L. Co. 97 Wis. 585, 73 N. W. 333; Calteaux v. Mueller, 102 Wis. 525, 78 N. W. 1082; Marvin v. Anderson, 111 Wis. 387, 87 — 68 — N. W. 226. And such purchase docs not amount to a cancellation of the stock purchased. 1 Cook, Corp. (5th ed.) § 313; Taylor, Priv. Corp. (5th ed.) § 135; Elliott, Priv. Corp. (3d ed.) § 193; Western Imp. Co. v. Des Moines Nat. Banks, 103 Iowa, 455, 72 N. W. 657; Porter v. Plymouth G. M. Co. 29 Mont. 347, 74 Pac. 938. A corporation clearly has the right to purchase its stock, keep it alive, and treat it as assets. It is manifest it did so, as appears from the findings, which are supported by the evidence. Now the testator by his will provided that Elsbeth should receive shares of the capital stock, clearly contemplating she should receive shares of the 10,000 shares then outstanding. Some of the 3,322 shares of stock had been purchased and were held by the corporation as assets before the testator had made his will, and he knew the method of doing business and that the stock was considered as assets. Elsbetlis stock under the will was to be set apart at the time of Mrs. Pabst’s death, October 3, 1906, and at that time, under the findings and the evidence, the stock was outstanding, and, according to the books as they then stood, it required 614.5502 shares to make a book value of $1,000,000. The fact that a dividend was declared afterwards on December 11, 1906, by the corporation does not alter the case. All the stock participated in this dividend as of December 11, 1906, that received by the testator’s children when the will was made as well as that set apart for Elsbeth October 3, 1900. So we think, as well upon the grounds of the intention of the testator as upon the facts proved and found respecting the corporation’s treatment of the stock, it was outstanding October 3, 1906, and not surrendered. The court found it was the intention of the corporation to hold the purchased stock as assets,, and whether it did or not is largely a question of intent. Porter v. Plymouth G. M. Co. 29 Mont. 347, 74 Pac. 938 ; Western Imp. Co. v. Des Moines Nat. Bank, 103 Iowa, 455, 72 N. W. 657; Dacovich v. Conizas (Ala.) 44 South. 473; Knicker — 69 — bocker Imp. Co. v. State Board (N. J. Law) 65 Atl. 913; Comm. v. B. & A. R. Co. 142 Mass. 146, 155, 7 N. E. 716; Ralston v. Bank of California, 112 Cal. 208, 44 Pac. 476. So we think upon any theory of the ease the shares of stock purchased by the corporation must be regarded as outstanding and corpus of the estate and not income. 3. Error is assigned because the court below determined that the stock dividend declared December 11, 1906, was to be taken as principal of the trust estate, at least upon the portion not necessary to make Blsbetlv’s $1,000,000. As we have before seen, up to December 11, 1906, the 3,322 shares of stock bought in by the corporation had been carried upon its books as outstanding stock and had a potential existence for the purpose of resale. There is in the briefs of counsel a lengthy and interesting discussion of the different rules, known as the Pennsylvania, Massachusetts, and New York rules, respecting the distribution of dividends as regards the life tenant and remainderman. But if the stock dividend, or so-called dividend, declared December 11, 1906, was not in fact income, but part of the corpus of the estate, we are relieved of any discussion of the vexed question arising under these several rules respecting the distribution of income between life tenant and remainderman. As appears from the findings and the evidence, the 3,322 shares distributed, or attempted to be distributed, by the resolution of December 11, 1906, were not income. They were not purchased with earnings or income of the company. Two hundred eighty of these shares were held and owned by the company in the testator’s ’ lifetime and the balance were purchased after his death, twenty-four shares being paid for out of the treasury of the company, and the remaining 3,018 by transferring to the seller $600,000 worth of real estate of the Pabst Brewing Company, and the remainder of the purchase price by the proceeds of a loan made upon bonds issued by the Pabst Brewing Company secured by a mortgage upon the plant of the com — 70 — pany and fixtures, together with real estate in several states outside of Wisconsin, the bonds being in the aggregate $3,500,000. Therefore it is perfectly clear that all of these 3,322 shares of stock so held by the corporation on the 3d day of October, 1906, were a part of the principal or assets of the Pabst Brewing Company and not income. The detailed findings of the court below respecting the bookkeeping, the cash dividends declared from the time of the execution of the will of the testator up to the time of the death of Mrs. Pabst, October 3, 1906, clearly establish these facts, and it is unnecessary to go into a discussion of them in detail here. Of these 3,322 shares there were in the estate of the testator 1,918 shares, and after deducting the 614.5502 shares going to Elsbeth to make her $1,000,000, the balance, under the will, went in equal parts to Gustave G. Pabst, Frederick Pabst, Jr., Maria Goodrich, Emma Boehrilein, and Elsbeth. This was the condition of the assets of the estate at the time of the death of Mrs. Pabst, and under the terms of the will these assets went to the different legatees named as corpus of the estate and not as income. There was no income included in any of these shares at the time the rights of the legatees attached upon the death of Mrs. Pabst, and it was beyond the power of the corporation to change the character of the stock owned by the testator after his death so as to divert it into channels not contemplated by him. The will provided expressly for a division of the entire estate of the testator at the time of the death of Mrs. Pabst, and these shares of stock then owned by the estate, being principal and not income, necessarily passed as such to the legatees, and could not by any subsequent act of the corporation be diverted from that course so as to defeat the manifest intention of the testator. If the resolution of December 11, 1906, had the effect of converting the purchased stock into income, the result would simply be to allow the corporation to carve out a portion of the assets of the corporation, call it income and de — 71 — clare it such, and thereby defeat the intention of a deceased stockholder as expressed in his will. The question under this assignment of error simply turns on whether or not the outstanding stock, 1,918 shares of which belonged to the testator, was income or principal of his estate, and we think it very clear that it was the latter, and went as such to the different legatees on the death of Mrs. Pabst. A case quite in point is Gilhey v. Paine, 80 Me. 319, 14 Atl. 205. The court below found on sufficient evidence that the stock dividend of December 11, 1906, was not a distribution of profits or dividend strictly as between tenant for life and remainder-man, but was simply a redistribution of the purchased shares of stock of the corporation as representing permanent capital. The contention of appellants is that the shares distributed by the dividend of December 11, 1906, should go to the adult children as income, or at least so much of the amount represented by this dividend as represented the profits earned by the Pabst Brewing Company after the death of the testator should be so paid. But this contention brings us back primarily to the question of whether this stock dividend was principal or income, and we conclude from the findings and the evidence that it was principal and should be distributed as corpus of the estate. 4. The next question involved is whether the executors, under the authority to invest conferred by the ninth article of the will, have the power to make the investments mentioned in the complaint. The complaint alleges that Emma Soehnlein has requested the plaintiffs, as executors, to loan to her a portion of the trust estate by them held in trust for the benefit of herself and children, not to exceed $250,000, upon her personal obligation, secured by stocks and bonds of Soehnlein & Co., a corporation of Germany with a capital stock of 1,500,000 marks, equivalent to $375,000, and engaged in the manufacture of champagne, or to dispose of a portion of the trust fund and invest the proceeds in the stock — 72 — of said company; she representing that the corporation has a plant consisting of real estate worth $325,000 and a large amount of other property, and has earned more than ten per cent, for twenty years last past, and that all of the stock of said corporation is owned and held by her husband and the members of his family, that the company has a bond issue of $250,000 secured by a mortgage on its real estate and plant, and its indebtedness, in addition to said bond issue, does not exceed $100,000, and that the plaintiffs, as executors, are ready to make such loan, provided upon investigation they are satisfied with the security and have power under the will to make such loan. The court below found the allegations of the complaint in this respect true, and further found that the trustees ought not to make the loan or investment referred to, but did not expressly determine as matter of law that the trustees had no power to do so. The executors and trustees under the will are given power and authority to manage and control the property “according to their judgment and discretion, and to sell and dispose of any portions thereof, including any real estate.” And the will further provides respecting the power conferred: “Anri I give them full authority to invest the trust properties in such manner as they shall deem best, with no responsibility for losses, provided they act honestly and in good faith.” This in terms is a very broad power, but it must have a reasonable, if not a strict, construction, in the light of the well-established law governing the action of trustees charged with such duties. 2 Underhill, Wills, 1146, § 700. The authority given to invest the property in manner “as they shall deem best” must be held to vest in them a reasonable and not an arbitrary discretion, and to imply á duty to execute the trust in accordance with existing laws governing trustees in the execution of their trust. In re Allis’s Estate, 123 Wis. 223, 101 N. W. 365 ; Simmons v. Oliver, 74 Wis. 633, — 73 — 43 N. W. 561; Ackerman v. Emott, 4 Barb. 626; Ilill, Trustees, 368; 1 Perry, Trusts (5th ed.) § 453; 3 Pom. Eq. Jur. (3d ed.) § 1074; Clark v. Garfield, 8 Allen, 427; King v. Talbot, 40 N. Y. 76, 87; Tuttle v. Gilmore, 36 N. J. Eq. 617; Davis, Appellant, 183 Mass. 499, 67 N. E. 604; In re Hart’s Estate, 203 Pa. St. 480, 53 Atl. 364; Dray’s Appeals, 34 Pa. St. 100; Mattocks v. Moulton. 84 Me. 545, 24 Atl. 3004; Brown v. Brown (N. J. Ch.) 65 Atl. 739; Matter of Hall, 164 N. Y. 196, 58 N. E. 11. In Davis, Appellant, 183 Mass. 499, 67 N. E. 604, the power in terms was broad, giving the trustees power to invest “in such manner as to them shall seem expedient,” and it was held that they were not relieved from the obligation to exercise a sound judgment and a reasonable discretion in regard to such investments as they might make under the authority given. In In re Hart’s Estate, 203 Pa. St. 480, 53 Atl. 364, the power was to invest in such securities “as may in their judgment be best.” In speaking of this broad power conferred upon the trustee the court said: “Ilis obvious duty was to preserve the principal by reasonably safe investments, and to pay such income as was earned from such investments to those entitled thereto. He was not to increase the income by any sort of supposed largely remunerative investments which might endanger the principal. ... It was not an unlimited authority to invest the money as an ordinarily prudent man would invest his own. . . . lie must take such risks only as an ordinarily prudent man would take who is trustee of the money of others.” In Mattocks v. Moulton, 84 Me. 545, 24 Atl. 1004, the authority was broad, and ho limits put to the discretion of the trustee. The court said (84 Me. 545, 24 Atl. 1006) : “The law does not hold a, trustee responsible for errors in judgment when he has been careful to enlighten that judgment; but we think the law does require of a trustee, even under a will like this, more than good faith and honest judgment. We think it must be assumed that the testatrix made. — 74 — this part of ber will witb reference to tbe well-known legal and equitable rules governing trustees, and that sbe intended tbe trustee of ber appointment to be mindful of them. True, sbe left tbe investment of tbe trust estate to bis judgment, but it was to bis judgment as trustee enlightened and guided by tbe approved rules applicable to tbe investment of trust funds, not to bis uninformed, personal judgment, exercised without reference to legal rules and principles. . . . He must always bear in mind that be is dealing witb trust funds, which were not given him to be used in developing or furthering business enterprises, but to be guarded carefully and invested cautiously, so that principal, as well as interest, may be forthcoming at tbe appointed time. While be must ]oe as diligent and painstaking in tbe management of tbe trust estate as tbe average prudent man is in managing bis own estate, be may not always place tbe trust funds where be, or tbe average prudent man, would place bis own funds.” Many other cases might be cited in support of tbe doctrine above enunciated. There can be no doubt, under a power broad as tbe one under consideration, that the trustees are bound to act in good faith and exercise a sound judgment and prudent - discretion in making an investment. They are bound to look to tbe interests of tbe remainderman as well as to those of tbe life tenant, and place tbe trust estate in no hazardous position. 17 Am. & Eng. Ency. of Law (2d ed.) 459; In re Hart’s Estate, 203 Pa. St. 480, 53 Atl. 364. Tbe question arises upon tbe facts before us whether, in tbe exercise of a sound judgment, tbe trustees were authorized to malee tbe proposed investment. It is conceded by counsel for appellants that tbe general rule is that investments should be made within tbe court’s jurisdiction, but that this rule is subject to exception, and should not be made so rigid as to admit of no possible exception, citing Ormiston v. Olcott, 84 N. Y. 339; Denton v. Sanford, 103 N. Y. 607, 9 N. E. 490; and Clark v. Clark, 23 Misc. 272, 50 N. Y. Supp. 1041. But these cases recognize tbe general rule to tbe effect that executors have no power to invest trust funds beyond the ju — 75 — risdiction of the court in the absence of express authority to do so. In Denton v. Sanford, swpra, at page 613 (9 N. E. 492), quoting from Ormiston v. Olcott, 84 N. Y. 339, the court said: “While, therefore, we are not disposed to say that an investment hy a trustee in another state can never be consistent with the prudence and diligence required of him hy the law, we still feel hound to say that such an investment, which takes the trust fund beyond our own jurisdiction, subjects it to other laws, and the risk and inconvenience of distance and of foreign tribunals, will not be upheld hy us as a general rule, and never unless in the presence of a clear and strong necessity, or a very pressing emergency.” And in Thayer v. Dewey, 185 Mass. 68, 69 N. E. 1074, the court, while recognizing that in that state there is no arbitrary rule against investment in a foreign state, holds that there is grave objection to such investment of a trust fund “where the property is beyond the jurisdiction of our c'ourts, and is subject to laws different from our own.” We are also cited hy counsel for appellants to Clark v. Clark, 23 Misc. 272, 50 N. Y. Supp. 1041; Clark v. Beers, 61 Conn. 87, 23 Atl. 717; Knowlton v. Bradley, 17 N. H. 458; and Citizens’ Nat. Bank v. Jefferson, 88 Ky. 651, 11 S. W. 767. Hone of these cases involves the question of a foreign investment and cannot be said to be out of harmony with the general rule respecting the duties of trustees as laid down in the authorities upon the subject heretofore referred to in this opinion. Counsel for appellants also rely upon In re Allis’s Estate, 123 Wis. 223, 101 N. W. 365. It will he seen, however, that in that ease the investment was of the kind contemplated in the will, and therefore was not restricted to the conditions and limitations imposed hy law for the investment of trust funds. The powers given, as this court said, were of the “broadest kind,” and the purpose of the testator, as manifested in the will, evidently was that such investment in question he made. — 76 — The English rule is that a trustee can only protect himself against risk by investing the trust fund in real estate and government securities, or in a fund approved by the court. Ackerman, v. Emott, 4 Barb. 626; 1 Perry, Trusts (5th ed.) § 453; Clark v. Garfield, 8 Allen, 427. This court lias followed the English rule. Simmons v. Oliver, 74 Wis. 633, 43 N. W. 561; In re Allis’s Estate, 123 Wis. 223, 101 R. W. 365. Legislation in this state has to some extent modified the English rule. Ch. 317, Laws of 1903; In re Allis’s Estate, 123 Wis. 223, 101 R. W. 365. When we look to the language of the will and the circumstances surrounding it, we discover nothing from which we can find an intention on the part of the testator that such an investment as proposed should be made. As we have seen, the general rule is against the right of the trustee to make foreign investments under power to invest quite similar to the power in the will under consideration. It is manifest that, if the proposed investment be made, the property will pass beyond the jurisdiction of the court and in a measure beyond the control of the trustees. We cannot think that the testator intended to confer such power. As said by the court in Matter of Hall, 164 N. Y. 196, 58 N. E. 11: “The trusts of this will are to- provide the testator’s children with incomes during their lives, and on their deaths the principal is to go to their issue. The very object of the creation of the trust was, therefore, the security of the principal; otherwise the testator might better have given-the property outright to his children, who were the primary objects of his bounty.” We believe, in the light of the authorities, that the testator must have intended by the language used that tho executors in exercisiug their judgment should exercise it as trustees bound to secure a safe, and not a hazardous, investment and within the jurisdiction of our courts and not in a foreign land. The court below was of the opinion that the investment — 77 — should not ho made, and, -while it did not pass directly upon the question of power to make it, it is quite obvious that it was'of the opinion that the trustees had no power to make the proposed investment, and we are of the same opinion, and so hold. It follows from what has been said that the judgment of the court below must be affirmed. By the Court.- — The judgment of the court below is affirmed. Each party is entitled to the taxable costs in this court, to be paid out of the estate. Timlin, J., took no part.