Upham v. Plankinton

RoseNberey, J. It is contended first that under the terms of the will no power is granted to the original trustees to convey any real estate except such as was vacant and not occupied with buildings at the time of the death of the testator and that no such power can be extended to their successors in trust. We think it clear that the premises in question were not vacant and unoccupied property within the meaning of that clause of the will of John Plankinton which authorized the sale of “any and all real estate hereby devised to them [the trustees] which shall be vacant and not occupied with buildings at the time of my death,” etc. It is equally clear that the will does not in express terms confer upon the trustees any power of sale of lands not vacant and unoccupied. However, this case is ruled adversely to the contention of appellants by Ruggles v. Tyson, 104 Wis. 500, 509, 81 N. W. 367, and Upham v. Plankinton, 152 Wis. 275, 140 N. W. 5. While the will vests in the trustees no power of sale, the power of a court of equity to order a sale by the trustees under the circumstances established by the .findings in this case is unquestioned. It is not in disregard of the expressed will of the testator that such sale is ordered, but it is for the ex [277] press purpose of carrying out and effectuating tbe intent expressed by tbe testator, by preserving tbe estate for tbe uses for wbicb tbe testator intended it. To permit tbe property to be lost- or consumed so as to deprive those entitled to tbe beneficial interest therein of their interest is surely not carrying out tbe will of tbe testator. But when tbe court, as in this case, orders a sale for tbe preservation of tbe trust estate and impresses tbe proceeds of the sale with tbe trust created by tbe will, tbe testator’s intent is carried out and tbe interests of tbe beneficiaries are substantially promoted. So far as tbe power of the court to order tbe sale is concerned, sec. 2100a, Stats., is merely declaratory of tbe common law, and it also prescribes tbe procedure in cases coming within its terms. By the Gourt. — Judgment affirmed. Esoiiweilee, J., dissents.