Karel v. Pereles , 161 Wis. 598 ( 1915 )

Siebecker, J.

The trial court held that the failure of James M. Pereles and Thomas J. Pereles to account for the moneys which they had received into their hands from the Robert Davies estate constituted, under the facts and circumstances shown, a violation of their duties as executors and a breach of their executors’ bond. This conclusion is based on the facts as found by the court that it was the purpose, intent, and understanding of the county court, as expressed in its judgment of February 28, 1901, and of the executors and their sureties on the bond, that James M. and Thomas J. Pereles should hold the funds constituting the trust estate created by the will of Robert Davies, deceased, in their capacity as executors until the payment and distribution thereof among the persons entitled thereto under the will. Con-cededly no part of the fund in controversy was ever paid to any of the persons beneficially entitled thereto under the trust. It is also undisputed that no bond was ever given and no appointment was ever made by any court of these executors as trustees of the express trust created by the testator. It is the contention of the appellants that the sureties on the executors’ bond are not liable for the loss of this trust fund devised to James M. and Thomas J. Pereles in trust, to hold, manage, care for, and invest and reinvest on good interest-bearing notes secured by mortgages on improved real estate in Milwaukee county for the designated beneficiaries. This claim is made on the grounds that on February 28, 1901, the county court ordered that the executors’ accounts be approved and allowed, and on that day also by decree directed the executors to administer the trust fund as prescribed in the will. It is urged that this action of the court operated to terminate the duties of the executors and to discharge the bond, and, further, that if it he held that this decree did not terminate the duties of the executors and discharge their bond as such, then the loss of the trust fund by the executors is attributable to their acts of mismanagement in their attempted execution of the .duties of the testamentary trustees under the direction of the court, and the sureties on the executors’ bond are therefore not liable for their default in the matter.

The defense rests on one of the two grounds: either that the duties of the executors did not persist after the entry of the county court’s decree on February 28, 1901, or that before the termination of their executorship they erroneously assumed to perform the duties of such trustees under the direction of the county court without qualifying for the office.

It appears that, the testator nominated and the court appointed the executors, who duly qualified. They were also made the trustees by the will to carry out the testamentary trusts. They returned an inventory of decedent’s estate and received and took possession thereof as executors. They filed an account as executors, and petitioned the county court stating that they had administered the estate, prayed judgment that the account be allowed and that the residue of the estate in their hands be assigned. Upon due notice the account was examined and an order made by the court that the account be approved, allowed, and ordered to be recorded. The court rendered a decree on the day it approved and allowed the account which recites that the personal property of the estate remains in the hands of the executors as trustees for distribution, and thereupon ordered, adjudged, and decreed “that the said executors hold in trust the sum of twenty thousand (20,000) dollars” and to pay and distribute the net income of $12,000 thereof to Byron Y. Davies during his natural life, and at his death distribute the principal as directed by the will. The executors under their executorship held the title to this personal property. It is well established that the title to personal property of the testator vests in his personal representatives. Stehn v. Hayssen, 124 Wis. 583, 102 N. W. 1074; Schinz v. Schinz, 90 Wis. 236, 63 N. W. 162; Palmer v. O’Rourke, 130 Wis. 507, 110 N. W. 389; Estate of Kirkendall, 43 Wis. 167. A testamentary trustee, under the provisions of sec. 4025, Stats. 1913, in order to qualify as such trustee is required to give bond to the county judge having jurisdiction of the probate of the' will, and the title to the trust estate cannot vest in the testamentary trustee until the proper bond required by this statute has been given .and filed. Schinz v. Schinz, supra; McWilliams v. Gough, 116 Wis. 576, 93 N. W. 550; Wallber v. Wilmanns, 116 Wis. 246, 93 N. W. 47. In the Schinz and McWilliams cases the executors who qualified and received the estate into their hands as executors were also testamentary trustees, and the court held that the title to the trust estate remained vested in the executors until they qualified as testamentary trustees. In the Gough Case it is said:

“The statute (sec. 4025, Stats. 1898) obviously contemplates qualification of a testamentary trustee before his office as such shall commence, imposing upon him active duties. The formal assignment in this case of the property to the Goughs as testamentary trustees did not operate to change the title to the property. It was in them before the order, and it remained in them after that, no trustee having been appointed in their stead, notwithstanding they failed to qualify. Obviously, therefore, before a testamentary trustee has any active duties to perform, he must accept the trust in the manner contemplated by the statute, namely, by giving a bond as required by sec. 4025, Id.”

So in the instant case, in default of the executors qualifying as testamentary trustees they could not assume to perform any duties as trustees and they held the estate as executors, and, as stated, if the court by decree formally .attempted to assigu it to them as testamentary trustees on February 28, 1901, such action of the court did not operate to change the title to the property from them as executors to’ that of testamentary trustees, because they had not qualified .as trustees. The decree of the county court plainly indicates, however, that the county court did not thereby undertake to transfer the title of the property from them as executors and to them as testamentary trustees. We regard the cases of Newcomb v. Williams, 9 Met. 525, cited in the Schinz Case, and Cluff v. Day, 124 N. Y. 195, 26 N. E. 306, to be in harmony with the cases in this court and as supporting the holding of the lower court in the instant case. The circuit court properly held that the executors’ bond in this case is not discharged.

By the Court. — The judgment appealed from is affirmed.

TimliN, J., took no part.