ESTATE OF GOODRICH, 271 Wis. 59 (1955)

72 N.W.2d 698

ESTATE OF GOODRICH: DANE COUNTY HUMANE SOCIETY, Appellant, vs. UNION TRUST COMPANY, Trustee, and another, Respondents.

Supreme Court of Wisconsin.October 10, 1955 —
November 8, 1955.

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APPEAL from a judgment of the county court of Dane county: GEORGE KRONCKE, JR., Judge. Affirmed.

Helena Goodrich died testate November 12, 1915. Her will and codicil named several legatees and provided trusts for their lives. The further provision was made to be carried out upon the death of all the legatees:

“After the death of my said daughter and upon the death of the said several legatees, respectively, the unexpended balance of the principal, the income of which was devised to said legatees, respectively, shall by said trustee and executor be placed in a fund known as the Helena Goodrich Memorial Fund, the income of which shall be paid at convenient intervals, preferably quarterly, to the organization now known as the Milwaukee Branch of the Wisconsin Humane Society, with which I was for several years connected and much interested, to be expended by it for the general purposes of the organization.”

On April 8, 1916, the executor petitioned the county court for a construction of the will, and especially as to the above provision, as follows:

“Your petitioner further shows that as he is informed and believes the said deceased was never connected with any organization known as the Milwaukee Branch of the Wisconsin Humane Society but that for many years she was a member and a director of the Dane County Branch of the Wisconsin Humane Society and that the Dane County

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Branch of the Wisconsin Humane Society claims that it is the organization designated in the will of said deceased as the organization to which the income of the Helena Goodrich Memorial Fund should be paid under the will of said deceased and your petitioner further shows that it is necessary that the will of the said Helena Goodrich be construed in respect to the payment to be made of the income of said fund.”

As a result of this petition and a hearing held May 11, 1916, the county court rendered its judgment September 12, 1916, in which it determined that the Wisconsin Humane Society of Milwaukee, Wisconsin, was the intended beneficiary under the will and codicil, and construed the above provision in the following language:

“And upon the further trust upon the death of the legatees above named and in case the said Addie Goodrich Davis shall survive said legatees then and in that case to use the income of said property including any income which may not be specifically devised for the benefit of the said Addie Goodrich Davis, if she shall require it, and if not, then such income to be retained by said trustee until such time as it shall be required or until her death and upon the further condition that after the death of the said Addie Goodrich Davis and upon the death of the said several legatees, respectively, the unexpended balance of the principal, the income of which was devised to said legatees, respectively, shall be by said trustee
and executor placed in a fund to the [be] known as the Helena Goodrich Memorial Fund, the income of which shall be paid by said trustee at convenient intervals, preferably quarterly, to the Wisconsin Humane Society of Milwaukee, Wisconsin, to be expended by it for the general purposes of the organization.” (Emphasis supplied.)

From that part of the judgment, on behalf of the Dane County Branch of the Wisconsin Humane Society, certain members appealed to the circuit court for Dane county, and as a result the judgment of September, 1916, was amended March 22, 1917, but only as to the beneficiary of the Goodrich Memorial Fund, it having been determined that the intended

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beneficiary is the Dane County Branch of the Wisconsin Humane Society of Milwaukee, Wisconsin, rather than the Milwaukee Branch of the Wisconsin Humane Society.

On May 12, 1939, Addie Goodrich Davis, the sole surviving legatee with a life interest in the trusts, died. On June 14, 1939, the Union Trust Company, trustee of the Helena Goodrich Memorial Fund, petitioned the county court for an order terminating the trust and turning over the balance of the assets in its hands to the Dane County Humane Society. The Humane Society gave consent, and on July 7, 1939, the county court ordered that all of the remainder of the trust estate be delivered to the Dane County Humane Society of Madison, Wisconsin, and that upon the filing of the receipt therefor by the Humane Society, the Union Trust Company, as trustee, be discharged as trustee. A receipt was executed by the Humane Society by its proper officers, but through an agency agreement, the physical assets remained in the hands of the Union Trust Company. Although the Humane Society consented to the entering of the 1939 order, no notice of the petition was served on the attorney general of the state of Wisconsin.

On April 14, 1943, the Union Trust Company, recognizing that the order of 1939 was erroneous in that it did not comply with the provisions of the will and the final construction of the will of Helena Goodrich, petitioned the county court to vacate the order of 1939 and to direct that the balance of the trust estate be held by it as trustee, to be managed and expended pursuant to said will and the judgment of 1916 as amended. On August 10, 1943, an order granting said petition, vacating the order of 1939, was entered by the county court.

On May 29, 1953, the trustee petitioned the county court for instructions relating to the administration of the trust and on the same day such court entered an order setting such petition for hearing on July 3, 1953. At said hearing the attorney general entered his appearance, which is the first

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time the attorney general had appeared in any of the proceedings. The Dane County Humane Society entered a special appearance at said hearing and moved the court that the order of August 10, 1943, be vacated on the ground that the court was without jurisdiction to enter it, which motion, if granted, would have had the effect of reinstating the order of July 7, 1939. By judgment entered November 23, 1953, said motion was denied, and the Union Trust Company, as trustee of the Helena Goodrich trust estate was instructed to continue to hold the principal of the Memorial Fund and to administer the same in accordance with the judgment of September 12, 1916, as modified on appeal by the circuit court judgment of March 22, 1917. The Dane County Humane Society appeals.

For the appellant there was a brief and oral argument b Lucius A. Squire of Madison.

For the respondent Union Trust Company there was a brief by Wegener Pasch of Madison, and oral argument by James H. Wegener.

For the respondent Attorney General there was a brief by the Attorney General and Gordon Samuelsen, assistant attorney general, and oral argument by Mr. Samuelsen.

FAIRCHILD, C. J.

A charitable trust was created. The articles of incorporation of the Dane County Humane Society specify that the business and purposes of the Dane County Humane Society shall be “aiding to secure the enforcement of the laws for the prevention or punishment of cruelty to animals, children, women, aged or dependent people, or criminals, . . .” A trust fund created for the purpose of carrying out those general aims undoubtedly constitutes a charitable trust. 10 Am. Jur., Charities, p. 638, sec. 76; 2A Bogert, Trusts and Trustees, p. 175, sec. 379; 3 Scott, Trusts, p. 2003, sec. 374.2.

The final judgment entered September 12, 1916, as modified by the circuit court judgment of March 22, 1917, in

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effect construed the will. Such final judgment, as so modified, adjudged that after the death of those for whom the testator made provisions in her will, the unexpended balance of the principal “shall be by said trustee and executor placed in a fund to the [be] known as the Helena Goodrich Memorial Fund, the income of which shall be paid by said trustee at convenient intervals, preferably quarterly” to the appellant, to be expended by it for the general purposes of the organization. The plan and purpose of the trust are now to be found in that judgment.

The order of July 7, 1939, terminating the trust and ordering the residue turned over to the appellant Dane County Humane Society, was clearly erroneous. However, the court was not without jurisdiction to enter such order because of the continuing jurisdiction of county courts over the administration of testamentary trusts. Such order, being erroneous, was subject to reversal on appeal, but no appeal was taken from said order. After the Union Trust Company was discharged as trustee, following the giving by the appellant society of its receipt for the distribution of the residue, such Trust Company had no standing in court to institute the 1943 proceedings. Whether the county court on its own motion could have entered the order of August 9, 1943, correcting the mistake in the 1939 order we find it unnecessary to decide on this appeal.

While the trustee after its discharge was in no position to question the erroneous order of July 7, 1939, terminating the trust, it is clear that the attorney general could do so at any time because he was given no notice of the 1939 proceedings. The attorney general is the representative of the public in a proceeding to enforce a charitable trust. Sec. 231.34(1), Stats. See also Restatement, 2 Trusts, p. 1183, sec. 391; 2A Bogert, Trusts and Trustees, p. 263, sec. 411; 11 C. J.,

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Charities, p. 368, sec. 90. The order of July 7, 1939, was such a deviation in the proper carrying out of the charitable trust according to the will of the testatrix, as construed in the final 1916 judgment, as modified on appeal by the 1917 circuit court judgment, as to make it the duty of the attorney general to appear and object thereto after the matter reached his attention.

The attorney general did appear in the 1953 proceedings and sought to uphold the 1943 order vacating the erroneous 1939 order. The effect of the 1953 judgment before us on this appeal is to treat the erroneous 1939 order as a nullity. For the purposes of this appeal it is immaterial whether such result was attained by the 1953 judgment upholding the 1943 order or by such 1953 judgment operating to directly vacate the 1939 order.

We, therefore, conclude that inasmuch as the attorney general had the right in the 1953 proceedings to question the erroneous order of 1939, and the judgment appealed from does in itself accomplish the setting aside of such erroneous order, such judgment must be affirmed.

By the Court. — Judgment affirmed.

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