Certain heirs at law appeal from the construction made by the county court of the provisions of a will which set up a trust.

Emma Kessler died testate. Her will, dated June 3, 1953, directed the payment of many specific legacies and then provided:

"Twentieth: All of the rest and residue of my property, both real and personal, I hereby give, devise and bequeath to the Baraboo National Bank of Baraboo, Wisconsin, as trustee for the following uses and purposes:

"(a) I direct that said bank shall hold and invest said property, adding the interest to the principal, and allowing the same to accumulate for a period of five (5) years;

"(b) At the end of said five (5) years, I direct that said trustee shall pay five hundred ($500) dollars to my nephew, Arlin Anhalt; five hundred ($500) dollars to my brother, Fred Anhalt; and five hundred ($500) dollars to my nephew Irwin Beuthin.

"(c) The rest of said trust fund shall at said time be paid to such person or persons as I shall designate upon a writing which I shall leave with this will, and I hereby reserve to myself the right to change the persons set forth therein; it being my intent to create for myself a power of appointment under said trust."

After Mrs. Kessler's death the executor's employees searched diligently for the writing referred to in section 20, sub. (c) of the will, supra, without finding any such document with the will or elsewhere. The executor's final account has been approved by the county court and the estate is ready for distribution. The executor-trustee asked the court for directions concerning the disposition of the residue which the will left to the bank in trust. The county court's order assigned the residue to the bank as trustee to invest and accumulate the income for five years from the date of Mrs. Kessler's death and at the end of that time it directed the trustee to pay $500 to Arlin Anhalt, $500 to Fred Anhalt, and $500 to Irwin Beuthin.

The order then provided:

"The court further finds that the writing or power of appointment provided for in subsection (c) of paragraph 20 of the will has not been found or produced to the court at this time, and the court therefore reserves the right to finally determine the assignment of the residue of said trust, after paying said specific legacies out of the same, until such time either as said writing or power of appointment shall be found, or said five-year period shall expire, and in either event the trustee shall then apply to the court for further directions in the matter."

Arlin and Fred Anhalt appealed from all that part of the order and judgment which construed section 20 of the will and assigned the estate in trust but now they concede that the construction and judgment pertaining to the $500 payments to the named beneficiaries is correct. They confine their opposition to the part directing the trustee to hold the residue in excess of that necessary for the three $500 payments. They contend that this part of the trust has failed and such excess should now be distributed as intestate property.

BROWN, J.

We find no case like this in the books but certain general principles are well established. To be valid, a trust requires that a beneficiary be named or designated. Sec. 231.11(5), Stats.; McHugh v. McCole (1897), 97 Wis. 166, 72 N.W. 631. It is not necessary that the beneficiary exist or be ascertainable at the time the trust is created but he must be ascertainable within the time limited by the rule against perpetuities. Restatement, 1 Trusts, p. 288, sec. 112; 89 C.J.S., Trusts, p. 738, sec. 23 c.

The will announced that the testatrix would designate the additional beneficiaries by a writing left with the will. She did not perform this condition either exactly or substantially and there is no evidence that she ever prepared or executed any such paper or even that she determined in her own mind the persons whom she wished to benefit. Mrs. Kessler also reserved to herself a power of appointment which, we think, she could exercise by an instrument kept separately from the will. Such a document, to be an effective exercise of the power, would have to be executed with the formalities required of a will. In this respect, also, the record not only fails to show the existence of such a document but there is no evidence that one ever existed or that Mrs. Kessler ever reached a decision on the identity of the appointees. We conclude that the record does not support an assumption that the power of appointment was exercised.

We determine that for lack of identified or ascertainable beneficiaries other than Beuthin and the two Anhalts the attempt to create a valid trust, except in respect to them, by section 20 of the will has failed and the residue, except for that required to pay Beuthin and the Anhalts, remains property undisposed of by the will.

The executor's final account has been approved. Time to distribute the estate in accordance with the terms of the will is at hand. Just as legatees are now entitled to have their legacies, so the heirs at law are entitled to have their share of the estate which is undisposed of by the will. To warrant withholding undisposed-of residue from them pending further information, we consider there should be evidence that the testatrix made a different disposition of it. All the evidence here is to the contrary. No one has come before the court claiming that he or any other identifiable person, existing now or in the future, is aggrieved by a distribution of the estate in regular course. Those who are entitled to take intestate property are certainly aggrieved by having their shares withheld without sufficient justification. On this record we conclude that the justification is not present.

By the Court. — Order and judgment reversed, and cause remanded for further proceedings conforming to the opinion.