Davies v. Davies
109 Wis. 129
Wis.
1901
Check Treatment
WxNslow, J.

In construing a will, “the intention of the testator is the thing to be sought, and that, when found satisfactorily evinced by the instrument as a whole, is to govern, notwithstanding any technical or literal meaning of particular clauses to the contrary.” Yearn,slum's Appeal, 25 Wis. 21. A construction which gives effect to the will, and prevents either total or partial intestacy, is to be preferred. Lovass v. Olson, 92 Wis. 616. The circumstances surrounding the testator at the time of execution — -such as the condition of his family, and his- relations to his relatives, and *133tbe amount and character of his property — should be taken into consideration, so that the interpreter may be placed as nearly as possible in the position occupied by the testator. Blake v. Hawkins, 98 U. S. 315.

In view of these well-settled rules the will of Dr. Davies is to be construed. The circumstances surrounding the execution of the will may be briefly stated. The will was not drawn by a lawyer, but by Dr. Davies himself, who had devoted himself for well-nigh his entire life to educational 'work. He was possessed of a slender property, more than one third of which was composed of his homestead, which was.necessarily unproductive. . His wife had no property of her own, and had no expectation of acquiring any separate property, but was dependent upon him. The relations between the testator and his wife were cordial, a fact which appears by testimony as well as from the terms of the will itself. The will also demonstrates that the testator had full confidence in his wife’s discretion and business ability. He had but one child, a son of tender years, and no one apparently dependent upon him except his wife and this child. All natural inferences would be' that he must have intended to provide as far as possible for the wants of both the mother and child.

Bearing these circumstances in mind, we can entertain no reasonable doubt but that the trial court properly construed the will.

It is certainly true that there are no appropriate words in the will which give a beneficial estate in the property to the wife. The devise is to her, “ to hold in trust for my infant son,” and, again, “ I hereby devise as aforesaid ” all my property “ to my said executor and trustee in trust for ” the education, maintenance, etc., of my infant son. The words “ in trust for ” are technical words, and, if to be construed in a technical sense, would convey no beneficial estate to the wife. Had these words been, used by a trained law*134yer, the argument that they must receive their true technical meaning would, be strong; but here the fact that they were used by a layman, albeit an educated man, is of great importance. The word “ trust,” in its popular sense, covers many things besides the legal and technical trust. A layman using the word might easily suppose that he was simply expressing thereby his belief or trust that the devisee would cary out his wishes; that in saying that he gave his property to his wife “ in trust ” to carry out his expressed wishes as to the education and maintenance of his children he was making an absolute gift to her of the property, trusting that she would faithfully carry out those wishes, — in other words, that the property was to be hers; simply burdened with the execution of his expressed desires.

Turning to other parts of the will, we are convinced that such was Dr. Davies’s intention. After providing for the education and maintenance of Jolvn, he directs that when John shall have taken his professional degree she then assign to him such sum out of the proceeds of the sale of his real estate “ as, in her judgment, may be of help to him in starting upon the practice of his profession, and at the same time within the limits of her ability to relinquish from her estate without detriment to the other children of whom she and I may hereafter become possessed.” A similar provision calling for gifts to after-born children follows, except that the words “ my estate ” are used instead of the words “her estate.” "We have been entirely unable to reconcile these provisions with the idea that Mrs. Davies was to possess no beneficial interest in the property, and was simply to act as a trustee, with not a shadow of provision for even her bare support while she was educating and maintaining the child which was the result of their union. The inference that she herself had a beneficial interest in the property is irresistible from the words “ her estate ” and the other language used. If the intention was that the estate *135was to be administered as intestate estate after the trust provisions were fulfilled, or that it was all to go to John and the other children, if any, then these provisions would be nugatory, not to say ridiculous. And the nnnatural character of such a disposition, which leaves his wife penniless, is a consideration which must have great weight. Nor will it do to say that Dr. Davies probably anticipated that his wife would renounce the provisions of the will and take her share of the estate under the law. The scheme of the will is such, and the amount of the property so small, that it would be evident to any mind that such a course would destroy the entire plan and render the execution of the will practically impossible.

The evident confidence and trust in his wife, which is evidenced throughout the will, lends support to the construction given it by the trial court, while the last clause of the will seems utterly inconsistent with the idea that the widow was to have no beneficial interest in the property, but was simply to be a trustee discharging certain duties.

It must be admitted that the result reached carries the doctrine of construction to a considerable length, but, wé believe, not beyond just and wholesome legal conclusions.

By the Court.— Judgment affirmed; taxable costs of the executrix and the appellant to be taxed and paid out of the estate.