Niles v. Rogovsky

Owen, J. Without pausing to inquire whether, in view of the broad control which county courts exercise over testamentary trustees (ch. 174, Stats.), the circuit court had jurisdiction of this action, or whether, if it did have jurisdiction, it should have been exercised (Pietraszwicz v. Pietraszwics, 173 Wis. 523, 181 N. W. 722), we proceed to a consideration of the merits. Appellant contends that she is entitled to the relief prayed for in her cross-complaint on the following grounds: first, the distributive share of respondent, including the increase, became vested at death of testator, assignable and transferable; second, by signing the stipulation and agreement in question respondent assigned and transferred the increase to her distributive share to’ appellant; and third, the law of estoppel will not permit respondent now to claim that the agreement in question is not binding upon her. The legal effect of the stipulation or agreement cannot be inquired into in this action. On the former appeal (Will of Reynolds, 151 Wis. 375, 138 N. W. 1019) it was held upon the authority of Will of Dardis, 135 Wis. 457, 115 N. W. 332, and Will of Rice, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778, to which now may be added Estate of Staab, 166 Wis. 587, 166 N. W. 326, and Estate of Sipchen, 180 Wis. 504, 193 N. W. 385, that an agreement or stipulation such as this by the beneficiaries of the will cannot authorize a distribution of the estate different from that provided for in the will. This is recognized by the attorney for the appellant, but he contends that it is not applicable to the present situation because the estate was distributed when it was turned over to the trustees. With this we cannot agree. Upon the for [376] mer. appeal the court used this language, to be found on page 384 of the reported case: “While the widow’s renunciation may affect the quantity of the residue, it cannot affect his disposition thereof, and it must be held by the trastees for the purpose of distributing the same among the beneficiaries he designated, that is, the residuary legatees after the widow dropped out. In view of this disposition of the property under the will, it must follow that the stipulation of the parties for a distribution of the estate contrary thereto must be disregarded, and that the executors and trustees must carry out and execute the will in accordance with its terms.” It will be noted that the court specifically declared that the disposition made by the will was binding upon the trustees as well as the executors. If it be contended that this declaration was not necessary to' a decision of the question there presented, and that it amounts to nothing more than obiter, we regard it none the less a correct statement of the law. It is true that for certain purposes an estate is settled when the claims of creditors have been adjusted and the executor discharged. It is settled so far as creditors and third parties are concerned. But when a will creates a trusteeship and the estate is turned over to the trustee for further administration pursuant to the terms of the will under the direction of the county court, the estate is not settled so far as the beneficiaries are concerned until the trusteeship has been terminated and the ultimate beneficiaries have been fully vested with title to the estate. The county court may no more sanction a distribution of the estate by the trustee out of harmony with the terms of the will than it can authorize such a distribution by the executor or administrator. The title of the trustee to property is much the same as that of the executor; the control of the court over the trustee is very similar to its control over the executor; and the control of the court over the estate while in the hands of the trustee is much the same as its control thereof while in the hands of the executor. Until the trusteeship is terminated, [377] the estate, if not within the custody and control, is under the direction and supervision of the county court, to the end that its ultimate disposition shall be in conformity to the will of the testator. Ch. 174, Stats. Until the trusteeship is terminated and distribution made by the trastee in accordance with the terms' of the will, the estate has not been settled nor has distribution thereof been made. In a sense it is in custodia legis. This was recently held by this court in Estate of Wakefield, ante, p. 208, 196 N. W. 541. Our conclusion, therefore, is that the trustee must dispose of the estate remaining in his hands in strict conformity with the terms of the will, and that no other distribution can receive the sanction of the court or relieve him from liability upon his bond. If appellant has any rights against the respondent growing out of the stipulation, such rights cannot be enforced in any proceeding incident to' the administration of a decedent’s estate. Such rights, if any, must be enforced in another forum. The demurrer to the cross-complaint was properly sustained. By the Court. — Order affirmed.