| Wis. | May 21, 1907
Lead Opinion
Tbe following opinion was filed April 9, 1907:
Erom tbe provisions of tbe will, above stated, it is clear that testator created a trust estate of tbe residue of bis estate, disposed of tbe net income thereof, and directed that sucb income should be received by bis widow and bis two sons in equal parts during tbe life of each. Tbe uncertainty arises as to tbe disposition made of this income in case of tbe death of either or both sons. Tbe provisions of tbe will as they stood before tbe codicil was executed are plainly to the effect that, in tbe event of tbe death of a son leaving a widow and children, one third of sucb net income which sucb deceased son was entitled to if living was to be paid to bis widow while she remained unmarried, and tbe remaining two thirds to tbe son’s children, with directions to apply it for their education and maintenance. In tbe event that sucb son left no children, then bis widow was to receive during tbe time she remained unmarried tbe income which tbe son would have bad. Tbe testator, however, changed tbe provisions disposing of tbe net income of a deceased son by a codicil, set out in full in tbe foregoing statement. Tbe meaning and effect of this codicil and tbe changes it makes in tbe provisions of tbe will are tbe questions presented.
Tbe phraseology of tbe codicil is somewhat involved and ambiguous, but an analysis of tbe different parts indicates that tbe testator intended to make provision for a deceased son’s widow different from what be bad provided in tbe will. Tbe codicil, after expressing confirmation of tbe will, directs:
“That on tbe death of either of my said sons named in said will, one third of that portion of tbe income of tbe trust estate and property created in and by said will which is therein, in item No. 10 of said will, on page 3 of the same, directed to be paid to him during bis natural life, subsequent to tbe 24th day of March, A. D. 1906, shall on bis death be paid to bis*58 widow quarter-yearly during her natural life, instead of while she shall remain unmarried, as was directed in item No. 11 of said will, on page 3 of the same.”
Taking the operative clauses of this codicil it is manifest that the testator undertook to make no changes other than in the provision for a son’s widow. From the context of the provision and the significance of the words employed it is reasonably plain that the provision made for such widow in the codicil was to be in place of whatever provision had been made for her in the will. Two points in making such provision are a specification of the part the widow should receive of the net income which the deceased son would have received had he lived, and the fixing of the period during which she should receive it. As to the first the codicil declares that “one third of that portion of the income,” to which a son was entitled while living, “shall be paid to his widow.” This is in itself a clear and definite determination of the share she is to have. This is followed by a direction as to when it shall be paid, and for what period, in these words: “quarter-yearly during her natural life.” If testator had not followed this clause by the words, “instead of while she shall remain unmarried, as was directed in item No. 11 of said will,” no uncertainty or ambiguity as to his intention could be said to exist. The provision as to the amount given to the widow for the period of her natural life, standing alone, is clear, if taken in its ordinary significance, freed from the succeeding clause. The insertion of the phrase “instead of while she shall remain unmarried” is explicable, however, upon the ground that the testator thereby laid stress upon the change he intended to make in the period during which she was to have this share of the net income, and he therefore specifically used the words, “as was directed in item No. 11- of said will.” In this item of the will we find that he had fixed and limited whatever the son’s widow received of the net income to the period during which she remained unmarried. This condition of the will
Appellant urges that tbe court erred in awarding respondents recovery of their costs against her. Nothing is submitted showing why appellant should be released from such liability, if tbe trial court in its proper discretion, under sec. 2918, Stats. (1898), awarded such recovery to them as tbe successful parties in tbe litigation. We find no grounds for reversal of tbe trial court’s action in awarding respondents their costs and disbursements. In re Donges’s Estate, 103 Wis. 497" court="Wis." date_filed="1899-06-22" href="https://app.midpage.ai/document/in-re-dongess-estate-8186345?utm_source=webapp" opinion_id="8186345">103 Wis. 497, 79 N. W. 786.
By the Court. — Judgment affirmed.
Upon a motion for a rehearing counsel for tbe appellant contended, inter alia, that tbe award of costs against her in tbe circuit court cannot be justified. Tbe petition for construction of tbe will was presented by tbe trustees to tbe county court under cb. 163, Laws of 1905. Tbe appellant
Rehearing
Tke motion for a rekearing was denied May 21, 1907, but • tke mandate of tkis court was amended, tke following opinion being filed:
We are persuaded tkat tke decision affirming tke judgment of tke circuit court as to costs against appellant is correct. But tke appeal to tkis court was unquestionably taken in good faitk and tke questions presented were worthy of consideration by tkis court, and therefore respondents’ costs should be directed to be paid out of tke estate, Jones v. Roberts, 96 Wis. 427" court="Wis." date_filed="1897-06-11" href="https://app.midpage.ai/document/jones-v-roberts-8185576?utm_source=webapp" opinion_id="8185576">96 Wis. 427, 70 N. W. 685, 71 N.W. 883" court="Wis." date_filed="1897-06-11" href="https://app.midpage.ai/document/senour-manufacturing-co-v-clarke-8185585?utm_source=webapp" opinion_id="8185585">71 N. W. 883. It is therefore
By the Court-. — Ordered tkat tke judgment and mandate of tkis court be amended so as to direct tkat tke judgment is affirmed, with costs to be taxed and paid out of tke estate.