Rock County Savings & Trust Co. v. Britt

26 N.W.2d 34, 249 Wis. 602, 1947 Wisc. LEXIS 231

• Court: Wisconsin Supreme Court
• Decided: October 24, 1946
• Status: Published

Opinions

Fairchild, J.

By the trial court's decision the accounts receivable and the checking account in the Merchants & Savings Bank of Janesville, Wisconsin, at the time of the testator’s death are decreed to be a part of the “coal business” which is to be operated by the trustees for ten years and then conveyed by them to the two sons. The question thus raised is whether these items are to be included and considered as a part of the “coal business” which had been carried on during the lifetime of the testator under the name of “F. M. Britt Coal Company” or as a part of the general estate.

The term, “business,” does not mean everything that a proprietor of a going concern may own at the time he disposes of it, even though it may be possible to trace some connection arising out of the operation of the business. The question of what is included when the term “business” is used has been a source of some litigation, and a great variety of meanings appear from the cases in which that term has been considered as well as in texts by writers who have given some attention to questions which may arise from the use of the term. The word “business” varies from mere good will to an inclusion of other and more substantial elements. It has never become fixed and definite enough to carry the same meaning in every instance. The cases reviewed leave it to the context of the instrument in which the term occurs or other circumstances indicating an intention as to what is to be included or excluded.

In examining a will to discover a purpose, it is well to proceed in the reading of it as if the language is unambiguous. Benner v. Mauer (1907), 133 Wis. 325, 330, 113 N. W. 663, 665. In that case and others following it the doctrine is expressed that if, taking the will as a whole in the light of the subjects with which it deals, its meaning is plain, there is no ■«legitimate room for judicial construction. As was said in Will of Stephens (1931), 206 Wis. 16, 19, 238 N. W. 900, 902: “But we must look to thelanguage of the whole will and read it in the light of the circumstances surrounding the testator, in order to discover what was apparently in his mind at the time he made it, and thus ascertain Jiis intention.”

Here the testator has created a trust. The trustees are charged with the duty of carrying on all his affairs. They take his place in the control of his estate subject to the direction contained in the will. They are to conduct the coal business as well as manage the rest of his estate, keeping the net profit from the operation of the coal business intact, as well as the net profit from the balance of the estate. By the trust arrangement he extends his business operation ten years. There are two sources of income to be considered, the coal business and all the other property, but these made up the estate treated with in the will. If money is used from the “other property” accommodation must be made so that the net income of each section may be fairly ascertained. In other words, there must be a plan of accommodation between the two sections or funds followed in the discharge of administration of the trust, which will accommodate itself to the benefit of the “business” and the “other property” so that the net income of the business may be fairly ascertained. There is. no room for a construction resulting in separating any cash or evidences of debt'from the estate.

All- his property, except his homestead “of whatever kind or nature, and wherever situated,” he did “give, devise and bequeath to” the trustees for the certain uses and purposes set forth in the will.

A reading of the terms of the will with reference to the conduct of the coal business and the management of the balance of his estate by the trustees tells the obligation the testator has placed upon his trustees. He gives them his entire estate in trust and they are to transfer and assign his property . in accordance with the terms of the will at the end of the ten-year period.

We do not deal further with the questions referred to in the briefs of counsel relating to the construction of the terms of the trust. It is well established that a court will not instruct a trustee as to questions which may never arise. Restatement, 2 Trusts, p. 806, sec. 259 (c). See also 2 Scott, Trusts, p. 1466, sec. 259, and cases cited; Will of Grotenrath (1934), 215 Wis. 381, 254 N. W. 631.

By the Court. — Judgment reversed. Cause remanded for further proceedings in accordance with this opinion.