Opinion
January 11, 1951 —
February 6, 1951.
APPEAL from an order of the county court for Lafayette county: GEORGE F. FRANTZ, Judge, Presiding. Affirmed.
For the appellants there were briefs by Peterson Kittelsen of Monroe, and oral argument by Marshall L. Peterson.
For the respondents there was a brief by Ervin W. Johnson of Darlington, and Gilbert Barnard of Elkhorn, for Ruth Chapman, Carol Jean Rudd, and Jeraldine Ruth Gordee, and by John J. Boyle of Darlington, guardian ad litem for Betty Lou Chapman, and oral argument by Mr. Johnson and Mr. Barnard.
This is an appeal from an order entered August 7, 1950, appointing William Steffen, trustee, to succeed Jay Chapman, deceased trustee, and denying petition dated July 11, 1950, in which appellants, Jennie Stites, Evelyn Fulton, and Eliza Chapman by Evelyn Fulton, legal guardian, seek appointment of the First National Bank of Monroe, Wisconsin, to succeed Jay Chapman, deceased trustee of the William Chapman trust estate.
The testator, William Chapman, died on May 4, 1933. His will nominated the First National Bank of Monroe, Wisconsin, trustee. Upon filing of a petition for probate of the will the bank disclaimed and renounced the office of trustee; there was filed with the renunciation a request by all the persons interested in the estate that it be accepted. By the judgment assigning the estate entered on June 29, 1937, Jay W. Chapman, a son of testator, was appointed trustee. He served until his death on June 5, 1950.
On June 13, 1950, the widow and the two surviving children of the testator made petition for the appointment of the bank as successor trustee. The application was opposed by the widow and children of the deceased son, Jay W. Chapman. William Steffen of South Wayne was appointed.
It is not claimed by appellants that William Steffen is not qualified to act. It is their claim that, in the absence of any showing that the bank is not qualified to act, its nomination by the testator compels its appointment as successor trustee.
When the bank renounced its right to serve as trustee it left the estate in the same position as if no one had been nominated in the will. 21 Am. Jur., Executors and Administrators, p. 430, sec. 99. It took itself out of the matter for all purposes and for all time, at least until the court might be called upon to appoint a successor. When the need for the appointment of a successor arose the bank was eligible for appointment just as was any other qualified person. But its position was no different from that of any other qualified person and could claim no right to retract its renunciation and present itself as the testator's nominee.
upon the death of Jay W. Chapman it became the function the court to appoint a successor. The judge has wide discretion, and, although the wishes of the beneficiaries may I be considered, it is not bound to appoint their choice or the choice of some of them.
Appellants urge that it is clear that testator did not want one of his family or any South Wayne individual to serve. That fact appeared just as clearly when appellants requested in 1937 that the wishes of their deceased husband and father be ignored and that his son be appointed trustee. They are not now in very good position to insist that decedent's wish be complied with.
By the Court. — Order affirmed.