February 6, 1956 —
March 6, 1956.
APPEAL from orders of the county court of Milwaukee county: G. L. PATTISON, County Judge of Buffalo county, and J. K. CALLAHAN, County Judge of Marquette county, presiding. Affirmed.
For the appellant there were briefs and oral argument by Perry J. Stearns of Milwaukee, in pro. per.
For the respondents there was a brief by Quarles, Spence Quarles, attorneys, and Edward H. Borgelt and Wayne J. Roper of counsel, all of Milwaukee, and oral argument by Mr. Roper.
Previous appeals involving matters of this estate are reported in 261 Wis. 290, 52 N.W.2d 867, and 264 Wis. 410, 59 N.W.2d 437, 60 N.W.2d 254. Another appeal from an order of the court was taken by Trustee Perry J. Stearns on January 29, 1954, which, on motion of respondents, was dismissed December 3, 1954.
Upon petition of Emmet L. Richardson and Clark M. Robertson, two of the three trustees in the estate of John A. Hill, deceased, pending in the county court of Milwaukee county, an order was signed on April 22, 1955, by Hon. G. L. PATTISON as acting county judge of Milwaukee county, returnable April 29, 1955, at 2 p. m., requiring Perry J. Stearns, the other trustee of the estate, to show cause why he should not be removed as a trustee.
The petition upon which the order to show cause was based, read in part as follows:
"Come now Emmet L. Richardson and Clark M. Robertson, being a majority of the trustees under the will of John A. Hill, deceased, and hereby petition the court as follows:
"1. That a life estate for deceased's widow was created under the will of John A. Hill, deceased, which said life estate terminated on the death of the widow the 17th day of April, 1948. That the will aforesaid provides that the assets in trust thereunder shall thereupon be transferred to a charitable trustee which has for a long time been qualified as such remainderman.
"2. That it is a matter of record that the trust created for the life beneficiary has not been terminated but has been allowed to continue. . . .
"3. That to petitioners' information and belief said Perry J. Stearns has in his possession all the books and records of said trust, and has managed the said trust estate to the exclusion of his cotrustees, except as to formal matters. That on the 13th day of July, 1954, a citation issued by this court directed to Perry J. Stearns was served on Perry J. Stearns providing as follows:
"'It is hereby ordered, that said Perry J. Stearns, as trustee, do within ten days from the service of this order upon him, prepare and submit to his cotrustee an account of the administration of said trust for the years 1952 and 1953, for submission to this court as required by law.'
"4. That by order of this court the 18th day of January, 1954, it was ordered:
"'It is further ordered that said Perry J. Stearns as one of the trustees under the will of John A. Hill, deceased, shall pay the above-mentioned sum (fees and disbursements) to Quarles, Spence Quarles on or before February 1, 1954.
"'It is further ordered that thereafter but not later than February 1, 1954, said Perry J. Stearns shall turn over to the Robert Hill Foundation the balance of any assets in his possession belonging to said John A. Hill estate.
"'It is further ordered that in the event of the failure on the part of said Perry J. Stearns to comply with this order in the manner and at the time set forth he shall be removed as a trustee under the will of John A. Hill, deceased.'
"5. That an appeal was taken from such order aforesaid to the supreme court by Perry J. Stearns the 29th day of January, 1954. That however no bill of exceptions was ever settled and the record was not certified to the supreme court until after motion was made for dismissal of such appeal on such grounds by respondent therein the 30th day of October, 1954. That such appeal was thereupon dismissed by the supreme court the 3d day of December, 1954, and affirmed upon appellant's motion for rehearing thereon.
"6. That Perry J. Stearns has failed and refused to comply with the citation of this court aforesaid and with the order of the court dated the 18th day of January, 1954, and failed to perform his duties as a trustee herein which makes it impossible to properly close this trusteeship and transfer the assets thereof to the remainderman, Robert Hill Foundation.
"7. That this petition is made for the purpose of obtaining an order to show cause why Perry J. Stearns should not be removed as a trustee under the will of John A. Hill, deceased, and such other further and proper order required thereby in the premises."
The orders of the court of January 18, 1954, and July 13, 1954, referred to in the above petition, had been rendered by Hon. G.L. PATTISON, who is the duly elected and qualified county judge of Buffalo county. Judge PATTISON had presided in matters pertaining to this trust estate since 1951, at which time the county judge of Milwaukee county, Hon. Roy R. STAUFF, had disqualified himself from further hearings in the matter, and had, by order, called upon Judge PATTISON to assume jurisdiction in matters pending. It appears that on January 14, 1954, Trustee Stearns had filed an affidavit of prejudice against Judge PATTISON which, by order, the court declined to recognize. It was from this order that an appeal was taken on January 29, 1954. The appeal was dismissed by this court on December 3, 1954.
On April 26, 1955, County Judge Roy R. STAUFF signed an order, which was duly filed, calling in Hon. J. K. CALLAHAN, county judge of Marquette county, to hear and determine all issues which may come before the court in the trust estate.
On April 29, 1955, at 2 p. m., which was the time fixed by Judge PATTISON'S order signed April 22, 1955, requiring Mr. Stearns to show cause as to why he should not be removed as a trustee, Judge CALLAHAN was present in court prepared to hear the matter. Judge CALLAHAN had been engaged in the hearing of matters in other causes in the county court of Milwaukee county during the morning of that day. Mr. Stearns appeared at the appointed time, as did also Attorney Edward Borgelt, who represented the petitioners. Mr. Stearns handed a copy of a "Special Appearance" and an "Affidavit of Prejudice" to counsel, and presented the original thereof to Judge CALLAHAN, stating that he was filing the same with the court. The court ordered that it be shown of record that the "Affidavit of Prejudice" was directed to Judge PATTISON, and that the "Special Appearance" which had been entered indicated that Judge PATTISON was without jurisdiction to hear the matter. Judge CALLAHAN refused to recognize the affidavit and the special appearance, and directed the parties to proceed with the hearing. Mr. Stearns moved to amend the affidavit of prejudice and the special appearance so as to show the name of Judge CALLAHAN in place of that of Judge PATTISON, claiming that the appearance of Judge CALLAHAN had come to him as a complete surprise. After the affidavit of prejudice and the special appearance had been presented to Judge CALLAHAN, the court stated:
"Let the record show that Hon. G.L. PATTISON, acting county judge of Milwaukee county did on the 22d of April, 1955, issue under his signature, seal of the court, an order to show cause returnable on this 29th day of April, 1955, at 2 o'clock, as the record shows, to Perry J. Stearns as to why he should not be discharged as trustee under the estate of John A. Hill.
"There has been an affidavit of prejudice filed on this 29th day of April, 1955, against Judge PATTISON when actually Judge J. K. CALLAHAN, judge at Marquette county has been called in to hear said order-to-show-cause matter; that in addition thereto a special appearance has been entered by Perry J. Stearns claiming that there is no jurisdiction for Judge PATTISON to appear to hear this matter and due to the fact that Judge PATTISON is not hearing it Judge J. K. CALLAHAN has been called in to hear said matter.
"The affidavit is denied and the special appearance is denied and the court will proceed with said matter forthwith."
Thereafter Mr. Stearns addressed the court, and stated:
"If the court please, I here and now move to amend these two papers just served and filed for the reason that the appearance of your Honor has come as a complete surprise to me, all of the moving papers having heretofore shown that Judge PATTISON made the order and as he has appeared in the other matters I had reason to believe that he would appear here and I therefore demand and request that my papers be amended to insert your name in place of Judge PATTISON for the same reasons apply in your case as in Judge PATTISON'S case."
Mr. Borgelt's observation as expressed to the court was as follows:
"Mr. Stearns has appeared before Judge PATTISON on this matter in at least possibly two or three occasions. Some of the hearings were long and drawn out. He certainly knows Judge PATTISON by this time. He has heretofore filed an affidavit of prejudice which was denied. He now has filed an affidavit against Judge PATTISON which under the statutes he has used tip his option if he had one to file one in the first instance so that he cannot now file one against your Honor. It would be a second affidavit of prejudice. I am relying on the fact that on one occasion heretofore he filed an affidavit or attempted to file an affidavit against Judge PATTISON and he did now here in these proceedings today file one. Now, what he seeks to do is file a second affidavit of prejudice against another judge who has been assigned to hear this matter."
Thereafter the court said:
"Based upon the record and that upon a fact that when an affidavit of prejudice is to be filed it should be, the opposite attorney should be notified five days ahead or the court can assess the costs, but the court is not going to assess any costs; by virtue of the record I refuse it at this time and we will proceed."
Mr. Stearns then made the following motion:
"If the court please, I now move to dismiss this motion for the reason that the court has not jurisdiction for the same reasons set forth in my special appearance."
The court denied the motion.
There was further colloquy between Mr. Stearns and the court as follows:
" Mr. Stearns: Those reasons apply to any judge other than the one sitting or elected in Milwaukee county.
" Court: In other words, Mr. Stearns, it is your belief that once a county judge of some other jurisdiction has been properly called in to county court of Milwaukee county that he hasn't any jurisdiction to issue an order to show cause?
"Mr. Stearns: I take the position that where he is not a judge of Milwaukee county, not elected by the people, he has no constitutional right to try and hear matters in this county except according to the statutes made and provided.
" Court: Well, Mr. Stearns . . .
" Mr. Stearns: I haven't seen this order which the court says has been signed.
" Court: There is a special provision in the Wisconsin statutes that upon the request of the county judge of another county to appear to hold court that he shall have the same jurisdiction as the county judge there then elected.
" Mr. Stearns: Can you tell me what county judge asked you to appear?
" Court: Why, the record must be here. I imagine that I was called in here because of the absence of another judge by the prevailing sitting judge, Judge STAUFF. Is that right?
" Mr. George Krebs [Clerk]: Correct.
" Mr. Stearns: May I have time to examine that record?
" Court: Yes, take a look at it. I wasn't called in by Judge PATTISON, I was called in by Judge STAUFF.
" Mr. Stearns: The entire matter comes as a surprise to me.
" Court: Well, we all get surprises.
" Court: The papers as filed cannot be corrected. Mr. Stearns has made an oral motion which I have denied, therefore there isn't any correcting to be done on the papers.
" Mr. Stearns: If the court please, I now file and serve two new papers, the same effect, but with the necessary corrections. One is an affidavit of prejudice against your Honor and the other is a special appearance on the grounds already mentioned.
" Court: The court refuses to accept them at this time on the grounds that the motion has already been denied on the original papers.
" Mr. Stearns: Well, I'll file them with the register of probate if I may.
" Court: You may do that. Let the record show that the record has been checked and an order was issued by Roy R. STAUFF, county judge of Milwaukee county, requesting that J. K. CALLAHAN act in the Hill matter and the order is dated the 26th day of April, 1955."
Mr. Stearns then stated that he was not in any way participating in Mr. Borgelt's motion.
The court said:
"Let the record show that in view of the fact that all motions, all affidavits, and special appearance of Perry J. Stearns, attorney, have been denied; that he makes the opening statement in open court that he refuses any further to participate. The court nevertheless upon such statement intends to proceed with the order to show cause. You may proceed."
After Mr. Borgelt had made an opening statement, Mr. Stearns interrupted and the following colloquy appears of record:
" Mr. Stearns: If the court please, may I interrupt to serve these papers on Mr. Borgelt?
" Court: Mr. Stearns, you have notified the court that you were not participating any further in the proceedings.
" Mr. Stearns: That is true.
" Court: Therefore if you are asking the court for some particular service then you are waiving any special appearance.
" Mr. Stearns: I'm not waiving any special appearance, if the court please, and I am filing now these papers as corrected with the clerk of this court.
" Mr. Borgelt: I think I perhaps should call to the court's attention . . .
" Court: The admission is denied and you can put them in the record if you want to, but the court is not accepting them."
While in his affidavit of prejudice directed against Judge CALLAHAN, Mr. Stearns had used a copy of the original filed against Judge PATTISON, it appears that he changed the names of the judges and reswore and resubscribed to the affidavit, after Judge CALLAHAN's name had been substituted for that of Judge PATTISON. Mr. Stearns did not remain in court thereafter. Evidence was presented upon the petition. On the basis of the evidence Judge CALLAHAN, by written findings dated May 3, 1955, determined that Mr. Stearns had been negligent in handling his duties as a trustee; that he had neglected to properly file his 1952 and 1953 trust reports; that he had failed to co-operate with other trustees and to furnish them with necessary or proper information so that the reports could be filed; that he had failed to comply with the order of Judge PATTISON dated January 18, 1954, directing payment of fees and disbursements, and had failed to deliver the balance of assets to the Foundation. Judge CALLAHAN ordered the discharge and removal of Mr. Stearns as trustee. He also directed, that within five days after service of the order, Mr. Stearns turn over to Trustee Robertson all assets, evidence of assets, bank accounts, bank statements, and records including canceled checks, safe-deposit-box keys, and all books and records of the estate or trust in his possession. Further, the court directed that Mr. Stearns be denied access to safe-deposit boxes in the name of the estate, and that Trustee Robertson be entitled to access to such safe-deposit boxes. It appears that this order was served upon Mr. Stearns on May 9, 1955.
On June 10, 1955, Judge CALLAHAN issued an order returnable June 16, 1955, directing Mr. Stearns to show cause why he should not be cited and punished for contempt of court for failing to have complied with the court's order of May 3, 1955; also, as to why Trustee Robertson should not be authorized and directed to pay attorney fees and disbursements as originally directed to be paid by Mr. Stearns, as trustee. On June 16, 1955, Mr. Stearns filed an affidavit of prejudice against Judge CALLAHAN, maintaining that the scheduled proceeding was new. Judge CALLAHAN declined disqualification on the basis of such affidavit of prejudice, and said in part:
" Court: This court sat on this matter previously and issued an order discharging Mr. Stearns as trustee, ordering him to turn over the assets within five days to the other trustees. An order to show cause was issued in this matter, signed on the 10th day of June before me the judge that issued the previous order. I refused an affidavit of prejudice previously for the reason that it was not furnished in time, the previous affidavit of prejudice having been directed to Judge PATTISON; a special appearance having been made by Mr. Stearns objecting to the jurisdiction of the court previously. The court denied that special appearance and proceeded.
"Mr. Stearns made a motion to amend the affidavit of prejudice which in the opinion of this court waived his special appearance and showed his submission to the court and his affidavit of prejudice was denied. . . ."
The court proceeded to conduct the hearing. Mr. Stearns participated. He delivered books, records, and securities to the register in probate, and filed with the court a receipt from the register indicating the items delivered. Counsel for petitioners pointed out to the court that some items were not accounted for. Mr. Stearns also filed an affidavit setting forth reasons as to why there was no contempt of court on his part. The court adjourned the hearing until July 7, 1955.
On June 14, 1955, Judge PATTISON issued an order returnable June 23, 1955, as to why Mr. Stearns should not be cited and punished for contempt of court for failing to comply with the court's order of January 18, 1954. Counsel for Trustees Richardson and Robertson addressed a letter to the register of probate of the Milwaukee county court, copy of which was sent to Mr. Stearns, advising as to the nonnecessity for the hearing scheduled June 23, 1955, in view of the delivery by Mr. Stearns on June 16, 1955, of property of the estate. Mr. Stearns, however, appeared before Judge PATTISON on June 23, 1955, filed an affidavit of prejudice against Judge PATTISON, proceeded to show cause in response to the order of Judge PATTISON dated June 14, 1955, and moved to dismiss the motion for failure of respondents' attorneys to appear at the time. The motion to dismiss was denied, and the contempt hearing was adjourned.
This appeal is by Perry J. Stearns, as trustee, and was taken from the following orders:
1. The order to show cause dated April 22, 1955 why appellant should not be removed as trustee., Hon. G.L. PATTISON, presiding.
2. The order dated May 3, 1955, removing appellant as trustee, Hon. J. K. CALLAHAN, presiding.
3. The order dated April 26, 1955, calling in the Hon. K. CALLAHAN to try said order to show cause, the Hon. Roy R. STAUFF, presiding.
4. The oral order of April 29, 1955, denying affidavit of prejudice and special appearance.
5. The oral order of April 29, 1955, denying motion to dismiss said order to show cause.
6. The oral order of April 29, 1955, refusing to accept affidavit of prejudice against the Hon. J. K. CALLAHAN and special appearance filed therewith, the Hon. J. K. CALLAHAN, presiding.
7. The oral order refusing to acknowledge affidavit of prejudice filed at hearing on June 16, 1955, the Hon. J. K. CALLAHAN, presiding.
8. The oral order refusing affidavit of prejudice of June 23, 1955, the Hon. G.L. PATTISON, presiding.
9. The oral order refusing to dismiss the order to show cause dated June 14, 1955, the Hon. G.L. PATTISON, presiding.
The county court of Milwaukee county has jurisdiction over the subject matter and the person of appellant. Attack is made by appellant upon the orders of the judge of said court in requesting the outside judges to determine matters involving the estate. It is contended that such orders are void on their face, and that the outside judges did not acquire jurisdiction. Appellant also maintains that the outside judges were disqualified from acting for the reason that affidavits of prejudice had been filed against them, and that they were in law bound to withdraw from participating in the proceedings. Appellant also submits that a trustee may not be removed where the trust has ended and it only remains to deliver the trust estate.
Sec. 253.07 (1) (a), Stats., provides inter alia that when a county judge or certain of his relatives are interested in a matter before the court, the judge shall be disqualified to act in relation to the matter. It provides also that when an affidavit of prejudice is filed against a county judge in a matter, he shall thereupon be disqualified to act. The statute also provides, sub. (1) (b), that no person shall be allowed to file an affidavit of prejudice against more than one judge in a matter. The statute provides, too, that the disqualified judge shall request another judge to hold court with respect to the matter.
Sec. 253.11, Stats., provides that: "Any county judge may act as county judge of any county upon the request of the county judge thereof, and while so acting he shall have the same powers as if elected for the county in which he is acting. In case the office of county judge is vacant or the county judge is totally incapacitated, such request may be made by the circuit judge for the county where the vacancy or disability exists."
It is appellant's position that the respective statutes are interrelated, and in fact integrated, and that the language in sec. 253.11, Stats., "any county judge may act as county judge of any county upon the request of the county judge thereof," relates directly and exclusively to the language in sec. 253.07 (1) (c) that "The disqualified judge shall thereupon request another judge to hold court for the purpose of settling or deciding such matter."
Were appellant's position correct, then manifestly a county judge could under no circumstances request another to hold court in a matter unless he was disqualified because of interest, or for the reason that an affidavit of prejudice had been filed against him. Were he to be temporarily disabled, or were he burdened with an excessive calendar load, there would be no means for obtaining assistance. We cannot be persuaded that such was the intention of the legislature. The services of a county court could well be weakened, if not crippled, unless the judge thereof were permitted to call upon others for assistance. The statutes are separate and distinct, and under provisions of sec. 253.11, Stats., the county judge is given power by the legislature to request others to hold court for him at his pleasure. The invitee judge is granted authority to act in place of the inviting judge. The effect of sec. 253.11 is comparable to that of sec. 252.13 which authorizes any circuit judge to hold court or perform other judicial act in any judicial circuit of the state other than the one for which he was elected or appointed, upon request of the judge of such other circuit, or the chairman of the board of circuit judges.
In view of the conclusions here asserted, we are constrained to hold that Judge Roy R. STAUFF was not without power and authority to request other county judges of the state to hear, try, and determine matters in this estate, notwithstanding that he had not been disqualified to act because of interest or that no affidavit of prejudice had been filed against him. The judges who were requested by Judge STAUFF to preside in matters of the estate, were clothed with authority by statute to perform judicial acts with reference to such matters.
We proceed to a consideration of the effect of the various affidavits of prejudice filed against Judges G.L. PATTISON and J. K. CALLAHAN. In 1951 Judge STAUFF disqualified himself from further hearings in connection with the estate. The court extended to the parties an option to proceed before the other branch of the county court of Milwaukee county, or before an outside judge. All parties, including appellant, consented that further hearings be held before an outside judge. On October 19, 1951, Judge STAUFF, by order, requested Judge PATTISON to assume jurisdiction, and Judge PATTISON consented to do so. A number of hearings were held by Judge PATTISON with reference to matters of the estate. On January 14, 1954, Mr. Stearns filed an affidavit of prejudice against Judge PATTISON in connection with matters then before the court regarding consideration of the payment of attorney fees and disbursements by Mr. Stearns as trustee to attorneys for the other trustees, and also as to the delivery of the balance of the assets from the estate to the Foundation by Mr. Stearns, as trustee. Judge PATTISON declined to disqualify himself, and he rendered the order referred to in the petition of Messrs. Richardson and Robertson as set forth in the statement of facts herein. Appeal from that order was taken to this court, but the same was subsequently dismissed. That order cannot be challenged upon this appeal.
On April 22, 1955, Judge PATTISON signed the order requiring Mr. Stearns to show cause why he should not be removed as a trustee. Judge PATTISON had not relinquished jurisdiction by withdrawing from participation in the estate. Consistent with the observations and rules indicated in Estate of Williams (1954), 266 Wis. 403, 63 N.W.2d 736, we are disposed to hold that Judge PATTISON continued in the jurisdiction of matters pertaining to the estate, and that it was for him to determine whether or not he should continue to act. Concededly, with respect to any new matter in the estate, he might have withdrawn, or he might have disqualified himself or he might have become disqualified by the filing of an affidavit of prejudice against him. The order to show cause signed by Judge PATTISON on April 22, 1955, was the commencement of a new matter in the estate. Clearly, it was within Judge PATTISON'S jurisdiction to issue the order. Such issuance may be likened to the filing of a complaint in an independent cause. Mr. Stearns filed an affidavit of prejudice against Judge PATTISON in the matter on April 29, 1955, and presented the same to Judge CALLAHAN. By such filing, Judge PATTISON became disqualified under sec. 253.07 (1) (b), Stats., from continuing in the matter. However, that affidavit of prejudice could not be made retroactive to April 22, 1955. Under the statute and the rule in Estate of Williams, supra, it would have been correct procedure for Judge PATTISON to request the services of another judge when the affidavit of prejudice was filed in court against him. However, at the request of Judge STAUFF, Judge CALLAHAN was present and prepared to hear the scheduled matter. After the affidavit of prejudice and the special appearance directed to Judge PATTISON had been filed, Mr. Stearns addressed a motion to Judge CALLAHAN for leave to amend the affidavit of prejudice and the special appearance. Judge CALLAHAN held that such motion constituted a general appearance and a waiver of right to challenge his authority to hear the matter. Mr. Stearns contends that he was taken by surprise, and ought to have been permitted to change the name of the judge when discovering that Judge CALLAHAN and not Judge PATTISON was presiding. A special appearance must be for the purpose of urging jurisdictional objections only, and must be confined to a denial of jurisdiction. When Mr. Stearns presented the motion, he did not thereby challenge the jurisdiction of Judge CALLAHAN to act, but clearly recognized that judge's jurisdiction, and sought the exercise of it with respect to the motion. We are obliged to determine that by requesting the relief which could be granted only on the hypothesis that the court had jurisdiction, a general appearance was made. As was declared in Ozaukee Finance Co. v. Cedarburg Lime Co. (1954), 268 Wis. 20, 24, 66 N.W.2d 686, such appearance waived all jurisdictional defects that might have existed in the proceedings.
The affidavit of prejudice subsequently filed against Judge CALLAHAN was a nullity for the reason that a previous affidavit of prejudice against Judge PATTISON had been filed in the same matter. Under the statutes an affidavit may be filed against only one judge in a matter.
We are compelled to determine that Judge CALLAHAN was invested with jurisdiction to hear, try, and determine the issues presented to him.
After Judge CALLAHAN's adjudication of the matter over which he presided, he issued an order to show cause as to why Mr. Stearns should not be determined guilty of contempt of court for having failed to comply with the court's order. When that show-cause order was brought on for hearing before Judge CALLAHAN, Mr. Stearns again filed an affidavit of prejudice. The court declined to disqualify itself. It cannot be considered that such proceeding was a new matter over which Judge CALLAHAN had no jurisdiction. In any event, Mr. Stearns participated in the proceeding. We find no error with reference to Judge CALLAHAN's declination to disqualify himself, or with reference to the disposition of the order to show cause. The same ruling applies to the situation when later Judge PATTISON issued a similar show-cause order relating to a matter in this estate which he had previously determined, and as to which he had not relinquished jurisdiction.
Judge CALLAHAN rendered and filed written findings, directed the removal of Mr. Stearns as trustee, and entered further orders, all as particularized in the statement of facts herein. In a trial to the court, findings of fact will not be set aside on appeal unless they are contrary to the great weight and clear preponderance of the evidence. Estate of Eannelli (1955), 269 Wis. 192, 203, 68 N.W.2d 791. Analysis of the record indicates that the evidence is sufficient to sustain the findings.
A trustee is subject to removal for neglect to file accounts. 90 C.J.S., Trusts, p. 198, sec. 233. Sec. 317.06, Stats., provides that the court may remove a trustee of a testamentary trust for charitable purposes under his failure to account to the court each year at the time prescribed.
It is the duty of a trustee to comply with orders of the court, duly made in pursuance of the jurisdiction and control of the court over the trust estate. Violations of orders of the court in trust matters are punishable as contempt. 54 Am.Jur., Trusts, p. 243, sec. 308. The failure or refusal of a trustee to obey lawful orders of the court with respect to the trust is ground for his removal. 90 C.J.S., Trusts, p. 196, sec. 233. Sec. 324.35, Stats., provides that if a trustee neglects to perform an order of the court, he may be removed.
In view particularly of the findings that Mr. Stearns had neglected to properly prepare and file trustee accounts for the years 1952-1953 and 1954 and had failed to comply with the orders of Judge PATTISON as specified in Judge CALLAHAN'S findings, it was clearly within the province of the court to have directed the removal, and to have ordered the delivery of the assets of the trust estate to the other trustee, and to have denied Mr. Stearns access to the safe-deposit boxes, and to have permitted access of said boxes to the other trustee. We find no merit to the contention that the court lacked power of removal of the trustee for the reason that the trust was ended and all that remained was the delivery of the assets and the accounting. The settling of the trust estate and the disposition of the assets were matters within the control of the court. It is apparent that the court was of a mind that such matters had been unreasonably delayed by virtue of the neglect as found. Under the circumstances as reflected in the findings, the order with reference to removal and as to provisions following removal, did not constitute abuse of discretion.
The various orders appealed from have been separately treated and determined herein. The controlling issue relates to the order of Hon. J. K. CALLAHAN of May 3, 1955, providing for the removal of the trustee. We are obliged to sustain that order as well as all of the others from which appeal was taken.
By the Court. — Orders affirmed.