61 Wis. 469 | Wis. | 1884
The circuit court held that the eleventh and twelfth clauses of the will were in violation of the statutes of this state against perpetuities, and therefore void. The correctness of that decision is the main question before us.
The provisions of the will, so far as material to be considered, are briefly these: The testator gave all of his real and personal estate to his executor in trust for the use and purposes therein declared. In the fourth clause he says that his wife, Ann Lawson, is in feeble health and weak in mind; he therefore commits her care to his executor; declares that it is his will that she be suitably fed and clothed, and that she have all medical and other care so that her every want may be supplied as fully and perfectly as possible; and he directs this provision to be liberally construed, and that ample means be provided out of his estate to defray all necessary charges for its fulfilment. In the ninth clause he directs his executor to sell so much of his real estate as may be necessary to pay the bequests and legacies named, giving his executor full power and authority to convey the same for such price and on such terms as to payment as he shall deem best calculated to secure the highest price, but he says he does not wish his homestead to be sold under this provision. In the eleventh clause he provides that, after paying all debts, legacies, and bequests specified, it is his will, and he directs
The objection taken to these clauses is that they suspend the power of alienation for the period of twenty years, and are in direct violation of secs. 2038 and 2039, R. S. The first section provides that “ every future estate shall be void in its creation which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter. Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.” The next section provides that “ the absolute power of alienation shall not be suspended, by any limitation or condition whatever, for a longer period than during the continuance of two lives in being at the creation of the estate, except when real estate is given, granted, or devised to literary or charitable corporations which shall have been organized under the laws of this state,for their sole use and benefit.”
The late distinguished chief justice observed in Dodge v. Williams, 46 Wis. 76-96, that these provisions, limiting the*
This common rule of perpetuity as to personalty may be unaffected by our statute. However that may be, the above clauses of the will plainly refer to real estate, and come within the prohibition of the statute, unless saved by the exception in sec. 2039,— a question which will be subsequently considered; for, as to the rest and residue of the estate, it will be seen that the power of alienation is sus
These provisions are derived from the statutes of New York, and have many times come before the courts of that state for exposition. In Hone’s Ex'rs v. Van Schaick, 20 Wend. 564, Mr. Justice BboNSON, when considering them, said: “ Every estate is void in its creation which is so limited that the absolute power of alienation may be suspended for more than two lives in being at the creation of the estate. The lives must be designated, and life in some form enter into the limitation. No absolute term, however short, can be maintained. The testator attempted, by means of a trust to receive rents and profits, to render his lands inalienable for a term of which more than nineteen years remained unexpired at the time of his death. This he could not do. The statute had forbidden it. The whole trust estate, and the remainders limited upon it, are consequently void. Coster v. Lorillard, 14 Wend. 265; Hawley v. James, 16 Wend. 61.” To the same effect are the decisions in Boynton v. Hoyt, 1 Denio, 53; Tucker v. Tucker, 5 N. Y. 408; Jennings v. Jennings, 1 N. Y. 547; Irving v. De Kay, 9 Paige, 521; Converse v. Kellogg, 1 Barb. 590; Burrill v. Boardman, 43 N. Y. 254; Rose v. Rose, 4 Abb. Ct. App. 108. It follows
But it is said in support of the will that the rules of construction are never strained to defeat a devise; and when the instrument admits of a construction which will sustain it, it must be adopted. Another rule invoked is that the construction is not to be varied by subsequent events, but that the will speaks from the death of the testator, and its different clauses must be considered with, reference to that time. These rules for the construction of wills are found in the elementary works on the subject, and are doubtless correct. See 3 Jarman on Wills, oh. 51; 2 Williams on Ex’rs, 1188. Arguing from these premises, it is said the testator’s entire estate might possibly be required to pay his debts and the legacies, and for the necessary support of his widow. These are clearly made the first charge upon his estate, and must be satisfied if they should exhaust the whole estate; but, if the entire estate was consumed for these purposes, then, surely, there would be nothing for the residuary clauses to operate on. As a matter of course, if there were no residue, there could be no property the title of which was suspended from alienation. This is too plain for discussion. But we must assume that there was a residue of the real estate remaining unsold after satisfying the other provisions of the will; otherwise, mooting this question as to the validity of these clauses is an idle and unprofitable discussion. And this assumption is according to the fact as established by the evidence. It appears that a considerable portion of the testator’s property falls within the operation of the eleventh and twelfth clauses, and must be disposed of as therein indicated, if they are valid. By these clauses the executor is directed, after selling enough of the estate — ex-
But an effort is made to sustain the will under the doctrine of equitable conversion. It is said that the real estate of the testator must be deemed as equitably converted into personalty at his death,— consequently the rule as to perpetuity cannot apply. The principle on which the doctrine of conversion rests is that whatever, in a will or other instrument, is directed or agreed to be done, is in equity considered as actually performed. Fletcher v. Ashburner, 1 Bro. C. C. 497; 1 Lead. Cas. Eq. 1118, 1123, 1170, and cases in the notes; Arnold v. Gilbert, 5 Barb. 192; Kane v. Gott, 24
This brings us to the question whether the trust in clauses
The circuit court held the bequest to pay the school district in which the testator lived, $2,000, according to the
It follows from these views that so much of the judgment of the circuit court construing the will as was appealed from is affirmed. The taxable costs and disbursements on both sides in this court are ordered to be paid out of the estate. The cause is remanded to the court below for further proceedings according to this opinion.
By the Court.— Ordered accordingly.