Patton v. Patrick

101 N.W. 408, 123 Wis. 218, 1904 Wisc. LEXIS 233

• Court: Wisconsin Supreme Court
• Decided: November 15, 1904
• Status: Published

Opinion

Dodge, T.

The rights of an owner of property to control', its use and management during his life and after his death,, within certain limitations imposed by law, are among the' most sacred, and entitled to the most careful protection at the-hands of courts, without scrutiny as to the quality of his reasons in making such choice. Among these rights is that of preserving specific real estate as such within a limited time-after his death. Ho may think that thereby is assured either a more certain or a larger income than could be obtained by its sale and the investment of the proceeds, or he may believe that the increase in sale value during that term will be for-the best interest of those for whom he desires to provide. The-testator in the present instance has declared his choice and will that the two parcels of real estate in Milwaukee-, now under consideration shall continue to be held as such until the year 1908, unless his widow and youngest child both die before that time. "Why he did so, we need not inquire. It was his right, and it is the’duty of courts to enforce that, choice, unless, indeed, it is so completely thwarted by other rules of law as to accomplish no possible purpose. It is said that is the case here, since we have already decided that, under" Gov. Ludington’s will, his six children became vested with their respective shares immediately upon-his death. Patton v. Ludington, 103 Wis. 629, 79 N. W. 1073. The result of tin's holding doubtless is that they can sell and transfer their vested rights to the remainders arising after the termination of the intermediate estates in the trustees. If, as is suggested,they might also effectively transfer their shares of the rents of this specific real estate during that interval, so that the-transferee would, in effect, own the entire property, subject only to the right of the trustee to collect and pay over the-rents until 1908, a very persuasive situation would be pxe-•scnted for holding the continuance of the trust futile. But we deem it plain that they have not that right. Sec. 2089, 'Stats. 1898, provides that no person beneficially interested in •a trust for the receipt of rents- and profits of lands can assign -or in any manner dispose of said interest. Now, whatever -•may be the holding as to the conversion of this or any other portions of the estate into personalty, for some purposes, by virtue of authority or duty in the trustees to sell and distrib•ute -the proceeds, we cannot doubt that a specific piece of land -placed in the hands of trastes under an active trust to collect and distribute rents, and required to be retained by them for a certain period, is, during that period, “land” held under a -trust for the receipt of rents and profits, within the meaning -of that statute. Hence no assignment by the beneficiaries of •their interest in those rents could be of any validity. The •purpose of the testator, therefore,'to preserve those rents as an ■annually recurring source of income to his children, is not ■rendered impossible by any power existing in them to transfer it to a purchaser of the remainder. Wo deem it our duty -to protect that purpose by refusing to discharge the property from the trust.

We cannot agree with the insistence of appellants’ counsel that this trust has become so executed as that, under the provisions of sec. 2098, Stats. 1898, the trust ceases. While, by reason of the peculiar situation of this land — leased as it was by the testator before his death for a long term to those who have constructed the only buildings thereon, and who, as we understand, are also charged with the duty of paying the •taxes — there remains but the single act of enforcing performance by the lessees of their duties to pay rent and taxes, nevertheless that is sufficient to mark it as an active trust, under ■all the authorities. Sec. 2074, Stats. 1898; Lamberton v. Pereles, 87 Wis. 449, 58 N. W. 776; Perkins v. Burlington L. & I. Co. 112 Wis. 509, 518, 88 N. W. 648; Holmes v. Walter, 118 Wis. 409, 416, 95 N. W. 380. So long as that duty remains, the trust is not an executed one, but is necessary to maintain the separateness of the intermediate equitable estate from the ultimate legal estate in remainder in either the property itself or its proceeds, and is valid by virtue of the active duties to receive rents and apply them to the use of the children imposed upon the trustees meanwhile. Secs. 2074, 2081, subd. 3, Stats., 1898.

We approve the conclusion reached originally by the county court, and affirmed by the circuit court, refusing to interfere with the terms of the testator’s will in regard to these parcels of real estate.

By the Court. — Judgment affirmed.