Boyle v. Marshall & Ilsley Bank , 242 Wis. 1 ( 1942 )

Action commenced June 19, 1942, by Madeleine, Henry Francis, and Helen Marie Boyle by Helen D. Boyle, their guardian ad litem, against Marshall Ilsley Bank and Francis H. Boyle, trustees. From a judgment for the plaintiffs, defendant Marshall Ilsley Bank appeals.

Defendants are trustees under a trust instrument executed by Julia G. Boyle, the grandmother of the plaintiffs and the mother of defendant Francis Boyle. The terms of the trust provide, briefly, that one half of the income is to be paid to Francis Boyle and the other half is to be retained by the trustees and added to the corpus, until the oldest of Francis' children shall attain the age of thirty. From that time Francis is to receive no further income, and as each child reaches thirty, he is to be paid his share of the corpus of the trust fund. There are various provisions relating to the possible death of Francis or the children with or without issue, all of which provide for the division of the corpus. Finally, there is a provision that if no issue of Francis reach the age of thirty, and no issue of said children survive, on the death of the last child of Francis, the trust shall terminate and the corpus be divided under the terms of the will of the settlor, which the parties have stipulated means between nephews and nieces of the settlor.

Plaintiffs are the three children of Francis and his divorced wife, who has custody of them and who receives $500 a month from Francis for their support. This is apparently as much as he can afford to pay at present. Plaintiffs are seeking to have the trustees pay $1,500 per year for two years for each of the two older children to cover the expenses of their education: A military school for Henry Francis, who is fifteen, and special training for Madeleine, who is eighteen, but who is in need of special care because of mental and physical infirmities. Plaintiffs seek to have this amount paid out of the half of the income which is by the terms of the trust retained by the trustees. Plaintiffs base their action on the implied intent of the settlor, and also on sec. 231.21, Stats., which in sub. (2) allows the contravention of the trust for the support of infant beneficiaries under certain circumstances. It is conceded that Francis is incapable of earning any money, except that he already is getting, and that neither the children nor the mother have any property of their own.

The trial court granted judgment for the plaintiffs, and the Marshall Ilsley Bank as trustee appeals, asserting that to grant the plaintiffs' request is an unwarranted contravention of the terms of the trust. The question presented on this appeal is whether a court may under the terms of the trust established by Julia G. Boyle order that $6,000 be paid to the plaintiffs within the next two years. The plan of the trust is similar to that in a testamentary trust set up by the same settlor and considered in Estate of Boyle, 232 Wis. 631, 288 N.W. 257.

The sympathy which anyone who reads the record of this case must feel for the plaintiffs in the situation in which they find themselves cannot alter the operation of rules of law. The settlor of the trust had a right to dispose of her property as she chose, and it is not the function of the court to rewrite the trust instrument with an eye to what it believes a more just distribution of the property. The trust itself makes no absolute provision for these infant plaintiffs; the provisions for these children are conditioned and take effect upon their reaching the age of thirty. Until that time the trustees are ordered to pay one half of the income to Francis Boyle and to keep the other half to add to the corpus. The trust instrument, then, makes no provision for the payment of this money. Does sec. 231.21, Stats., allow the court to disregard the settlor's directions on what shall be done with the second half of the income? We conclude that it does not and that therefore the judgment of the trial court must be reversed. Sec.231.21 (2) provides that an act of the trustee in contravention of the terms of the trust shall be void except "in case a beneficiary is an infant whose maintenance and education is not sufficiently provided for by the trust, and said infant has no other property and no parents able to provide him suitable maintenance or education, . . . the court having jurisdiction over the trust estate, may, if in his judgment the rights and interests of others in said trust, will not be thereby prejudiced, authorize" an appropriation for the care and education of such beneficiary. Without going into the question of whether in this case the infants' parents are unable to provide for them suitably, it would seem obvious from a reading of the section of the statutes above quoted as well as from a reading of sub. (4) of the same statute that in order to come under the provision an infant beneficiary must have some absolute and uncontingent interest in the trust estate. The court may provide for anticipating benefits but it may not confer them contrary to the intent of the settlor. Where, as here, the applicant has only a contingent interest in the fund, any advance must necessarily be detrimental to the rights of those who may get the estate in case the contingent interests fail to materialize. This is especially true since the advance is sought on the basis of the depleted financial condition of the applicant. Here plaintiffs may never be entitled to any share in the trust at all, and to give them $6,000 would be to contravene the intent of the settlor and to prejudice the rights of other beneficiaries of the trust.

By the Court. — Judgment reversed, with directions to dismiss the complaint.