9 N.W.2d 822 | Wis. | 1943
Petition of the administrator de bonis non of the estate of James H. Downs for the construction of the will. From a judgment entered December 8, 1942, Claire V. Downs, individually and as administratrix of the estate of Matthew C. Downs, appeals.
James H. Downs died June 23, 1931, leaving his widow and three adult children surviving him. By his will he left all of his property to his wife for life with the power to use the principal if necessary for her support, and after her death he provided that the remainder should be divided between his *304 children, the child of any deceased child to take by right of representation.
Matthew C. Downs, one of the sons of James, died intestate July 31, 1931, leaving no children but leaving his wife, the appellant, as his only heir. The widow of James, the life tenant, died September 17, 1942.
The trial court found that the interest of Matthew was divested by his death prior to the death of the life tenant and that the remainder of the estate of James H. Downs was to be divided between the two children who survived the life tenant. Testator left all of his property to his wife for life with the power to use the principal if necessary for her full enjoyment and support and after her death he provided that "all the remainder of my estate be divided equally between my children, share and share alike, the child or children of a deceased child to take by right of representation." One son who survived testator died before the life tenant, leaving his wife, the appellant, as his heir at law. The question is whether the interest of this son passed to his heir or whether it was divested by his predeceasing the life tenant. The trial court was of the opinion that the interest of the children of testator was contingent on their surviving the life tenant. We are unable to agree with this conclusion.
If the last phrase had been omitted, it is conceded that under the rule of Will of Roth,
Respondent seeks to distinguish the present case from Pattonv. Ludington, supra, and Will of Reimers, supra, on the ground that here there is a power in the life tenant to use the principal. It is clear, however, that a remainder which would otherwise be vested is not made contingent because the life tenant may if necessary use the corpus. See Restatement, 3 Property, sec. 276; Perkinson v. Clarke,
Respondents and the trial court rely on Will of Stack,
It follows that the widow of Matthew C. Downs was entitled to a one-third share in the estate of James H. Downs and that the trial court erred in excluding her.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in accordance with this opinion.