Derse v. Derse

103 Wis. 113 | Wis. | 1899

Dodge, J.

That the will of Anthony Derse intended to confer a life estate upon Catherine Derse, accompanied by a power to apportion the real estate amongst the children by will, appears clear. The will was not drawn by a lawyer, and the testator was a farmer. The use of the words “ for her life ” are, however, very significant, whether used by a lawyer or by a layman. It may be said that almost uniformly they convey to the mind of either the idea of limitation, and we think they were so used here. The unnecessary amplication of words to express rights which she would legally have without such words, by virtue of a mere life estate, is not inconsistent with the intent of such limitation, when used by such people as the draftsman and the testator in this case. The words used do not necessarily indicate more than an intention that her control and enjoyment of the farm during her life should be uncontrolled by any one else. They are entirely consistent with the purpose that sbe should enjoy the ]3roperty only for her life, but during her life the children and all others should be excluded from interference therewith; and they do not suggest any thought in the testator of giving to her the additional power of disposition, during her life, which might be inconsistent with a mere life estate. The intention of the testator to confer something less than an absolute fee is further evinced by the directions given as to the disposal of the property at the death of Catherine Derse by devise and bequest. While, of course, a direction as to whom she should devise the property might be ineffectual, if it were clear that an absolute title in fee were given to her, its presence is of much force in the construction of the preceding words, and confirms the conclusion that Anthony Derse did not intend to give the property to her absolutely, but only for her life, so that it would remain undisposed of at the time of her death. Then he was willing to leave it to her discretion how the apportionment of it should be made amongst the then-existing children, whose conditions might have substantially varied in the interval between the making of his will and the death of the life tenant. In Knox v. Knox, 59 Wis. 112, intention to limit widow’s rights to her life was predicated on far less significant language.

This conclusion being reached, the duty of the court below to proceed to make the apportionment follows obviously. The second section clearly conferred upon the widow a special power in trust, as defined by sec. 2122, Stats. 1898; for under that section a “ class of persons other than the grantee ” was entitled to benefit from the disposition authorized by the power. Sec. 2121 provides that, “if the trustee’of a power with right of selection shall die leaving the power unexecuted, its execution shall be adjudged in the circuit court for the benefit equally of all the persons designated as objects of the trust.” To this effect is the judgment appealed from.

All parties having filed a stipulation that the taxable costs of both appellant and respondents in this court be paid out of the estate, it is so ordered.

By the Court.— Judgment affirmed.