Pietsch v. Marshall & Ilsley Bank

SiebecKee, J. The primary question presented by the demurrer is, What is the legal effect of this written instrument ? In ascertaining the answer it is to be presumed that the terms of the instrument were employed to effect a purpose the law sanctions concerning a transfer of the property of Mathilde Pietsch. Many of the phrases used in connection with the effective parts of the instrument are probably the product of the scrivener’s habit of employing ancient and superfluous terminology in legal writings and others are manifestly the mere expression of the motives of the maker of the instrument. These parts of the writing, however, are not out of harmony with the provisions of the writing which evince the intent and purpose of the maker. The essential .and effective parts of the instrument are that Mathilde Pietsch thereby “sells, assigns, sets over, grants and conveys to her daughter Doretta Pietsch, and to her son Ferdinand Pietsch, and to the survivor of them, all her property, real and personal, in trust, nevertheless, upon the express trusts following, and the daughter and son “accept such [372] property upon the trusts as herein expressed.” The instrument provides that “power and authority is hereby given to the trustees, or to the survivor of them, to gather in, collect, sue for, all rents, insurance, mortgages, interest and other property . . .” belonging to her and “convert -all into money and to invest and reinvest same in securities as said trustees shall deem meet and proper.” By other provisions the grantor is to receive the income of this property during her life, and the trustees are to pay her the net income thereof at such times as she demands and malee a semi-annual “accounting of their stewardship” to her. Assignments of a life insurance policy and of her money in banks are specifically made to such trustees as such, and at the time of executing this instrument she executed a deed conveying to the trustees in trust all her real estate, which was delivered to one Wil-manns to be held by him “until her death, and then to be delivered to her trustees, . . .” and the trustees are directed after her death “to sell and dispose” thereof as they deem fit and proper “and distribute the proceeds according to the trust herein provided for.” The instrument then directs “the trustees,” after payment of her debts and funeral expenses, to pay to the persons named in the instrument certain specific sums, and the rest and residue of the estate they are directed to distribute in equal shares among her six children. It is well established that a trust may be created by an instrument in writing subscribed by the creators of the trust, if the intention is clear to create a trust for the purposes authorized in the law. The purposes as expressed in this instrument are reasonably clear to the effect that the grantor of the property did presently transfer and convey all her real and personal property to her daughter and son as trustees. She also supplemented such transfer by the execution of a deed contemporaneously therewith which she delivered in escrow". The result of this transfer was that the designated trustees took title and possession of the estate and became [373] vested with the authority to manage it, to collect the rents, interests, and profits thereof and pay her the net proceeds during her life, and then to execute the trust by paying and distributing the estate pursuant to the express provisions of the instrument. The statute, sec. 2081, Stats. 1915, provides : “Express trusts may be created for any or either of. the following purposes: . . . “(5) Eor the beneficial interests of any person or persons, when such trust is fully expressed and clearly defined upon the face of the instrument creating it, subject to the limitations as to time and the exceptions thereto relating to literary and charitable corporations prescribed in this title.” We are of the opinion.that the provisions of this instrument fully express and clearly define a trust, in that it. constitutes a conveyance of the trustor’s real and personal property to the designated trustees for the purposes of having the rents and income thereof paid to her during life, and at her death the corpus of the trust estate is to go to the persons she has selected as her beneficiaries. These are legitimate objects within the law of trusts in this state. Such conveyances of real estate in trust are valid if the trust is an active one within the contemplation of sec. 2074, Stats. We need not consider whether or not, under the provisions of this trust instrument, the real estate is to be deemed personal estate for the purposes of this trust, because it is manifest that such real property can properly be made a part of an active trust. That the trust is an active one is shown by the facts that the trustees are charged with the active duties of managing all the property of the trust, to collect all rents, interests, and profits thereof and to invest and reinvest the same and pay out of the net proceeds the sums due to the trustor under the conditions of the writing creating it. These are very important and active continuing duties during the existence of the trust. Goodrich v. Milwaukee, 24 Wis. 422; [374] Perkins v. Burlington L. & I. Co. 112 Wis. 509, 88 N. W. 648. In Schumacher v. Draeger, 137 Wis. 618, 119 N. W. 305, a trust of this nature was recognized as within the statutes, but the trust in that case failed because it came within the provision of sec. 2073, Stats. Here the possession of the corpus of the estate and the receipts, rents, and profits thereof vest in the trustees in trust for the benefit of the trustor during her life and thereafter to hold it in trust for the benefit of the persons designated in the trust instrument. It is to be noticed that the provision of sub. (5), sec. 2081, Stats., is not found in the statutes of New York, and hence the decision under the New York statute is not of controlling force in cases where this subdivision of our statute applies. White v. Fitzgerald, 19 Wis. 480; Goodrich v. Milwaukee, supra. The circuit court sustained the demurrer to the complaint apparently upon the ground that the contents of this writing show that Mathilde Pietsch intended it as a testamentary disposition and not as an express trust. The court in its decision declared its doubts in arriving at this conclusion. While some of the phraseology in which the instrument is couched gives weight to this idea, we are convinced that it was not intended to be a testamentary disposition of the maker’s property. The effective parts of the instrument to which we have called attention above clearly and expressly constitute a valid trust and all the other phraseology used in connection therewith is readily harmonized with that intent and object. It is .considered that the complaint, supplemented by the stipulated fact that the defendant bank had the required notice of the execution of the trust instrument before action was begun, states a good cause of action and that the demurrer thereto should have been overruled. By the Court. — The order appealed from is reversed, and the cause remanded for further proceedings according to law.