The,following opinion was filed Márch 9, 1920:
V IN je, J.The single question for decision on this appeal is, Did the Wisconsin Trust Company receive the income of the trust estate for the year 1917 within the meaning of sub. 3, sec. 10877» — 2, Stats. 1917? If it did, then under the provisions of sub. 5, sec. 10877n — 10, its duty ,was to report it for taxation and pay an income tax thereon. A solution of the question will be materially aided by a reference to the conditions of the trust. The Wisconsin Trust Company was made a trustee with the provision that if it refused to act another Wisconsin trust-company should be appointed in its stead. The funds of the estate were to be invested in such securities as the laws of the state of Wisconsin permit trustees to, invest in, and vacancies in the trustees were to be filled by the county court of Milwaukee county or its successor, and of course the trustees must account to the county court of Milwaukee county. These provisions indicate quite clearly that the testator intended the trust to be administered in Wisconsin, and we must- presume, in the absence of clear proof to the contrary, that the trustees have complied with the provisions of the trust.
It appears without dispute that the Wisconsin Trust Company has at all times been in the physical possession of the assets of the trust estate, has kept all the accounts thereof, and has prepared and filed its reports to the county court, the other trustees -joining therein to the extent of certifying that they believe such reports to be correct.
Now let us see just what was done in this case as to the disputed income. The Wisconsin Trust Company said to Gimbel Brothers, You may pay the income to "Mrs. Behai instead of-to me, as you request; but I must be advised of all the transactions between you so that I can correctly keep *151and report the trust account; gnd proper receipts must be sent me by Mrs. Behai to protect me in my account to the county court. Pursuant to such permission and direction the income was paid by Gimbel Brothers of Philadelphia to Mrs. Behai, presumably as a matter of convenience, since Mrs. Behai lived in Philadelphia. The Wisconsin Trust Company credited the income account of the estate with the amount paid to Mrs. Behai and debited the same account with the amount when Mrs. Behai’s receipt was received, and it accounted to the county court for the amount so credited and debited.
In view of the provisions of the trúst, the method of conducting the trust estate, as well as the legal effect of the mode of payment, we conclude that the transactions constituted in law a payment of the income to the Wisconsin Trust Company though no cash was received by it'. To hold otherwise were to permit shadow and not substance to control and to invite evasions of the payment of income taxes by an exchange of receipts in lieu of cash or its equivalent.
Since we reach the result that the income assessed was received by the Wisconsin Trust Company within the. meaning of sub. 3, sec. 1087m — 2, the case falls within the rule of State ex rel. Wis. T. Co. v. Widule, 164 Wis. 56, 159 N. W. 630, and not within that of Bayfield Co. v. Pishon, 162 Wis. 466, 156 N. W. 463. A number of collateral -questions argued are • rendered immaterial by the result reached upon the main facts of the case and are therefore not considered.
By the Court. — Judgment affirmed.
Rqsenberuy, J., dissents.