Chesterfield v. Hoskin

133 Wis. 368 | Wis. | 1907

Cassoday, C. T.

1. The decision of this case turns upon the construction to be given to the provisions of the will set forth in the foregoing statement. All agree that 'the intentions of the testator, in so far as they are expressed in the will, must prevail. Of course, no construction can be indulged which is in conflict with such intentions. There is no controversy as to the meaning of the third paragraph of the will. The executors were there required to invest and reinvest the claim against Jeffrey until the grandson became twenty-one years of age, and then the same was to be paid over to him; and in the event that he never arrived at that age, then the same was to be paid to the three nephews therein named. It is claimed on the part of the plaintiff that the words "cmd in-case of his death ” in the fourth paragraph of the will, should be construed to mean the plaintiff’s death prior to' his father’s. The will, of course, did not and could not go into effect until the death of the testator, which was about ten years after its execution. Had the plaintiff died prior to the testator, then he would have taken nothing by the will. In such an event the clause of that paragraph of the will to the effect that the testator gave and devised to the plaintiff “all the rest, residue, and remainder” of his estate, both real and personal, “for him and his use during his natural life,”' would have been without significance. To hold that the word “death” in the clause quoted refers to the death of the plaintiff prior to the death of the testator would he to frustrate the whole scheme of the will. The trial court correctly-held that the testator, by the word “death” in the clause quoted, contemplated the death of the plaintiff after the death of the testator when the will went into effect. Webber v. Webber, 108 Wis. 626, 84 N. W. 896; Korn v. Friz, 128 Wis. 428, 107 N. W. 659.

2. After giving to the plaintiff a life estate as indicated,, the will declares: “And in case of his [the plaintiff’s] death without issue and leaving a widow him surviving, then in. that event” the will gave one third of “all said rest, residue, and remainder” of “said estate, both real and personal, unto-his said widow,” and the other two thirds thereof to his three nephews, therein named, “provided, however,” that if' the plaintiff should “die leaving issue of his body him surviving, then in that event” the will devised and bequeathed “all said rest, residue, and remainder” of said estate “to said issue.” The plaintiff is still living and unmarried. Thus it appears from the express language of the will that the disposition of such rest, residue, and remainder is dependent upon two alternative conditions, the happening of neither of' which is at present ascertainable. One is the death of the plaintiff leaving issue him surviving, and the other is “bis-death without issue and leaving a ividow him surviving.”' Whether he dies leaving issue him surviving or a widow him surviving can only be determined in the future. A wife dying and leaving a husband her surviving can in no sense-be regarded as a widow. The plaintiff’s wife, Eva, died March 23, 1905, leaving the plaintiff a widower her surviving, but that did not make her “a widow.” The testator must be presumed to have known the meaning of a term so common as that of “a widow.” Besides, the will limits that term to one wbo may survive tbe death of tbe plaintiff. Unless tbe plaintiff leaves “a widow him surviving,” neither of tbe three nephews mentioned in the will can take any of such rest, residue, and remainder under the will. In case the plaintiff should die “without issue” and without'leaving “a widow,” then in that event the will makes no disposition of any of such rest, residue, and remainder of said estate, and the same would necessarily go to the heirs at law of the testator as intestate estate.

What has been said covers all the questions determinable upon this appeal.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to enter a judgment in accordance with this opinion.