Page:Federal Reporter, 1st Series, Volume 7.djvu/583

 HEERMANS p., SCHMAIjTZ. 'Jil �as declaring an expre^a. trust; for anyoftlio'purppaw for which, by the law of tljat .sta^e, 8uoh',trq8tBiOa3Q; ba created. And, in considering th^ qi^estipn .here, ray QT^ixiion-dB that suppoft for thi£f conveyaiice caust bp found, if'at.all, jii the fifth subdivision of the statute of this state, ■vyhioh ia uotoon- tained in the iiew York statjate, j,nd whioh.authorizes the -creation of an express trust "for the beneficiai interests of any persan or persans, when such trpst, is f uHy; expressed and clearly definedupon the face of the instijtfmentcreatingit." Touchr ing this clause in the Wisconsin statute of uses and trusts, Chief Justice Dixon, in Goodrich v,. The City of MUwaukee, 24 Wis. 430, says that — �; " It is not f ound in the> statiite cjE, New Yai-k, aiid .flrst appeared in this State in the Revised Statutes of 1849. The addition of that subdivision to the four which precede it, and which are found in the statute of New York, establishes, as it was undoubtedly intended to do, a policy in this State upon the subjcct of active trusts entirely different irora that which prevails in the state of New York. It shows very clearly that no active trusts were intended to h'e affected or abolished by an}/ provition of the statute, though the language of some of ils sections, literally construed, may be broad enough to iiiohide them; but that any such trust ma,y silll be cre- ated, when, in the language of subdivision 5, ' it is- fully expressed and clearly defined upon the face of the instrument creating it.' " �It follows.therefore, that; if this provision of the Wiscon- sin statute authorizes such a trust as is created by the conveyance in question, the decisions in New York before cited are inapplicable. Does the conveyance declare an ex- press trust of a nature covered by this subdivision of the statute? It is a conveyance for a speoified consideration to the plaintiflf, Heermans. It directs, the grantee to sell the lands by retail, with covenants of warranty. It provides f urther that until sale such part of the lp.nds as the grantee can rent shall be rented for the best priees obtainable. It contains a direction to collept the grantor's debts, and finally provides that the avails of the estates, real and personal, shall be paid and distributed — First, to defray the expenses pf the trust ; secondly, to pay =to the grantor during his life, or to appropriate to his use, under his direction, the residue of all moneys received; and, thirdly, after his d6cease,;and the ��� �