Roethke v. Woehler

Stevens, J. The case presents the question whether the proof is sufficient to .create a trust in the property of the wife for the benefit of these two petitioners. The fact that this petition was not presented until after the time for filing claims had expired does not bar relief, if the proof is sufficient to establish the creation of a trust. Estate of Horkan, 193 Wis. 286, 290, 214 N. W. 438. Nor is there any-- question that a trust in personal property [303] can be created by parol, provided that the evidence to establish it be clear and convincing. Dupont v. Jonet, 165 Wis. 554, 558, 162 N. W. 664. The proof does not establish that the deceased wife set aside any particular property which was to be held in trust. Nor did she say that any particular fund was to be kept intact for the benefit of these petitioners. On the contrary the wife directed the destruction of the will because she thought that her husband was going to live longer than she and that he might need to use her money in his lifetime. The husband could have used the corpus of the wife’s estate without violating any trust or any duty which he owed to these petitioners. The language used was appropriate to express the wish that, if the deceased had any of the property that came from his wife left at the time of his death, he should give it to these petitioners. The evidence comes far short of the clear and convincing proof that is essential to create a trust by parol. The fact that the provisions of-the will of the deceased, executed before the death of his wife, made more generous provision for the benefit of these petitioners than that contained in the will of the wife, shows that the deceased did not intend to deal unjustly with these petitioners. The case is distinguished from such decisions as Tyler v. Stitt, 132 Wis. 656, 112 N. W. 1091, by the fact that specific property was there designated which was to pass to the beneficiary, with no right on the part of the trustee to use any of the corpus. Here the right to exhaust the corpus of the wife’s estate, if necessary, was expressly given to the deceased at the time the wife’s will was destroyed. Such power is wholly inconsistent with the creation of a trust in the funds which had belonged to the deceased wife. By the Court. — Judgment affirmed.