Estate of Hauck, 1 N.W.2d 773

1 N.W.2d 773 | Wis. | 1941

Petition by Meta Reese as administratrix of the estate of Anna Yunk, and Nick Yunk, husband of Anna, dated November 8, 1940, for a construction of the will of John F. Hauck, father of Anna Yunk. From an order and judgment giving the administratrix a one-thirty-sixth share in the estate of John F. Hauck, the administratrix appeals.

John F. Hauck executed his will on September 8, 1923. He died on March 26, 1925. Anna Yunk died April 28, 1939, survived by her husband Nick Yunk as her sole heir. The testator's wife Mary died on May 30, 1940. After the payment of testator's just debts, funeral expenses, and expense of administration of his estate the will provided:

"Second. I give, devise and bequeath unto my beloved wife, Mary Hauck, all of my property of which I may be possessed at the time of my death, she to have and to hold the same for and during her lifetime, and to have the entire income therefrom.

"Third. After the death of my wife, all that remains of my estate, both real, personal and mixed, and wheresoever situated, I give, devise and bequeath to my six children [naming them] in equal shares, share and share alike, except, however, that the share which is herein given to my daughter, Anna Yunk, the principal of the same shall not be paid to her so, long as she lives with her present husband, but in case of her separation from him, or of his death, then the principal sum shall be paid to her; but the income from her proportionate share shall be given to her annually."

The condition attached to the legacy to Anna Yunk is claimed by the petitioners to be void as against public policy in that it tended to induce a divorce or separation of Anna Yunk from her husband, and that if such condition is not void, then the bequest is ambiguous. The trial court held that the share designed for Anna Yunk passed as intestate property; that the living children of John F. Hauck and the sole heir of Anna Yunk took the property as tenants in common; that each takes one sixth of the one-sixth portion of the estate of John Hauck which was designed for Anna. The administratrix of Anna Yunk's estate was therefore granted a one-thirty-sixth share. Appellant's contention is based on the proposition that by attaching the condition that the share set apart for Anna Yunk "shall not be paid to her so long as she lives with her present husband, but in case of her separation from him, or of his death, then the principal sum shall be paid to her; but the income from her proportionate share shall be given to her annually" the testator so far transgressed the rules of public policy as to make that limitation void. She insists that the legacy became effective free from any condition. The question is presented: Is the condition void as against public policy?

To render the provision invalid the intent of the father to induce his daughter to leave her husband must clearly appear. An illegal condition is not to be presumed. It is plain that a practical purpose and a plan wisely conceived is just as likely, if not more likely, to be back of the scheme providing for the daughter as that the purpose was an unlawful one. It must be assumed upon the record before us that the will was made and the condition attached with the intention of serving the best interests of the testator's heirs. She was intended to have the income while her husband lived and the corpus was to be payable to her only if she became a widow or was left to help herself due to a change in the marital status. Such a condition has been held valid. 2 Page, Wills (2d ed.), p. 1918, § 1148; Born v. Horstmann, 80 Cal. 452, 22 P. 169; Thayer v. Spear, 58 Vt. 327, 2 A. 161; Ransdell v. Boston,172 Ill. 439, 50 N.E. 111; Coe v. Hill, 201 Mass. 15,86 N.E. 949; 2 Pomeroy, Eq. Jur. p. 1955 ff, § 933; 68 A.L.R. 763. The most that can be said is that different meanings may be indicated depending on where the emphasis is placed. However, where the language of the will is reasonably susceptible to two different constructions, one of which will defeat while the other will sustain the provision, the interpretation upholding the validity of the clause is to be accepted.In re Donges' Estate, 103 Wis. 497, 501, 79 N.W. 786;Maxcy v. Oshkosh, 144 Wis. 238, 261, 128 N.W. 899, 128 N.W. 1138.

Anna's gift never vested in her because she died without meeting the condition attached to it. Johnson v. Schultz,214 Wis. 414, 418, 253 N.W. 179; Conant v. Stone, 176 Mich. 645,143 N.W. 39; Wetterlund v. Holm (10th Cir.),74 F.2d 107, 108; Dusiber v. Melville, 178 Mich. 601,146 N.W. 208.

It is considered that the condition attached to the legacy was not intended to cause the legatee to do an unlawful act, but rather to provide support and protection in the future if the condition be performed or be met. It was to be effective in the event of the husband's death or in the event of a legal separation. Upon this premise the county court ruled that this was intestate property and that appellant was entitled to a one-sixth part of the intestate portion of the estate of John Hauck. We are of the opinion the judgment must be affirmed.

By the Court. — Judgment affirmed.