Bussell v. Wright

KeewiN, J. There appears to be no controversy between the parties before the court on this appeal. The legatees and trustees seem willing that the trust be terminated and provision made by the court for the disposition of the property held in trust. Counsel on both sides maintain that the title of the residuary legatees vested at the time of the testator’s death, and if so the trust should be terminated. Counsel for respondent says in his brief: “If from an inspection of the will it appears that the testator intended to vest the residuary legacy at the time of the testator’s death, the trust should be terminated; otherwise not.” We shall spend no time in discussing the question of the vesting of the residuary legacy, because we regard the question not material to the decision of this case. The paramount question is: What was the intention of the testator respecting the execution of the trust as gathered from an inspection of the will? If it appears from the will that the intention of the testator was that the trustee should execute the trust founded, courts have no power to frustrate that intention and devise a different method of execution. This would be to substitute the judgment of the court for the judgment of the testator in the distribution of his bounty. The rule that the intention of the testator must govern has been often laid down by this and other courts, and further discussion of it would seem unnecessary. Scolt v. West, 63 Wis. 529, 24 [451] N. W. 161, 25 N. W. 18; Stark v. Conde, 100 Wis. 633, 76 N. W. 600; Smith v. Smith, 116 Wis. 570, 93 N. W. 452; In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786; Sherwood v. Sherwood, 45 Wis. 357; Davies v. Davies, 109 Wis. 129, 85 N. W. 201; Swarthout v. Swarthout, 111 Wis. 102, 86 N. W. 558; In re Moran's Will, 118 Wis. 177, 96 N. W. 367; In re Paulson’s Will, 127 Wis. 612, 107 N. W. 484; Stephenson v. Norris, 128 Wis. 242, 107 N. W. 343; In re Bouck’s Will, ante, p. 161, 111 N. W. 573; Pabst v. Goodrich, ante, p. 43, 113 N. W. 398. By the express terms of the will three specific trusts remain yet unexecuted, namely, the Qerrish trust, the Martin trust, and the Heslad trust. The terms of the will extend the time for the execution of the trust several years into the future, and the duty of carrying out the provisions of the will respecting these trusts'is in express terms imposed upon the trustee, not only by the will, but also by the express provisions of the codicil, wherein it is provided that the trustee shall care for, manage, and invest all of the trust fund during the continuance of the trust, and that the trust shall continue until all the devises and funds named in the will have been paid, transferred, and conveyed as directed, and not until then shall the residue and general trust fond and property be paid to the persons and in the proportions as directed in the will. So it is very plain that the testator intended that the trust should continue and be carried out bj the trustee until fully executed, and this purpose and scheme of the testator cannot be disregarded by courts. Aside from the fact that the duration of the trust by the terms of the will extends many years into the future, the execution of it, under the terms and contingencies named, is specially imposed upon the trustee. All the residue is devised to the trustee, -his successors and assigns forever, in trust “for the performance of this my will concerning the same.” Then follow specific provisions setting aside certain funds for the [452] benefit of persons named, to be paid at certain times, and to invest sums and pay the same and accumulations at stated times; and by the residuary clause to pay to certain parties named, “if alive, and to such as are alive at the date of such payments, share and share alike, the issue of any one deceased to take the share -which the parent if living would have taken.” It is very plain that the time has not expired during which the trust is to exist, nor has the trustee performed all his duties. It is true that in a proper case a trust may be terminated before the expiration of the, time limited in the instrument creating it when all parties are before the court, and there is no prohibition, express or implied, against such termination (Holmes v. Walter, 118 Wis. 409, 422, 95 N. W. 380), or where the trustees have performed all their duties and distributed the fund as directed (2 Perry, Trusts, 5th ed. § 920). But we have no such case here. To order a termination of the trust in the case before us, or make other provisions for the execution if it than those clearly defined on the face of the instrument creating the trust, would be a clear disregard , of the. intention of the testator. We are therefore of the opinion that the judgment of the court below should be affirmed. By the Court. — The judgment is affirmed.