*1 459 Estate of Evans: Madison, First National Bank
Trustee, Appellant, litem, Guardian ad Evenson, vs. others, Respondents.* 7, 1957.
December 6, 1956 January * denied, rehearing costs, Motion for with on March $25
VO "st* *6 Hill, briefs there were Miller & Hill by For appellant Ross, Stevens, Baraboo, Spohn, and Lamb & attorneys, of counsel, and oral argument Myron Madison of by of Pick H. James Hill. and Stevens Walter Anne Draper, Margaret Draper,
For respondents a brief oral there was K. Draper argument by Susan Baraboo, ad of litem. Evenson guardian G. William Thomas E. Evans there was a brief For the respondent Baraboo, W. Harlan by Kelley guardian oral argument ad litem.
FaiRCHild, C. Before taking up question J. whether or not 17, 1942, the judgment entered is April res adjudicata as to born after the date of testator, death of the it seems well to the nature pass upon and inclusiveness of the If the bequest. in article gift grant class, Third is ato and that class is so fixed the terms of that there be an bequest may interval of time which during increase, the class then the may is one which gift vests in the number of the class existing and such other as there- persons after become members the class. That interval continues to the of time or point event which is and certain. specified we are gift considering to “my grandchildren,” and *7 because of the absence of an alternative over gift or reversion heirs, in favor of the testator’s it an bespeaks intention of a vested The gift. grandchildren at the death living of the class, testator are members of the but the class is to a subject addition after-born change by grandchildren who came into before the of the being event which coming closes forever in the class. membership
The time fixed for the class closing is set the bequest: “After each reaches the grandchild age he thirty years, is to be his full share of the paid sum of this principal bequest with the interest which has together accumulated thereon.” This controls the increase in in the class. membership The time of the distribution of the settles the corpus question of maximum In the absence membership. of words in the will intent, a a testator indicating contrary would naturally desire to include all born at the time of the distribu- Simes, tion of the In corpus. Law of Future Interests (2d we find the ed.), following of rules of recognition con- struction :
“. . . the maximum in the class is membership determined when the time for distribution has arrived. The class may increase until that time and born thereafter persons are ex- 69, cluded.” sec. 634. p. when the first arrived “. . . the ‘time distribution’ class attained the designated age.” p.
member of the sec. 644. are rules
Jn 5 Law of following American Property, recognized: of some is until the occurrence
When a class postponed gift class does event, such as the attainment of age twenty-one, attains member of the class not close until first normally 372, sec. 22.44. the designated age. p. that the desire
“It must be in mind probable kept transferor, his transferees by when he describes average who many comply is to benefit persons group designation, can, time at the same as he without with the description 364, sec. 22.43. too inconvenience.” much causing p. increase that the class either may be so made gift may arrival of of the testator until the or decrease after the death event. the fixed of time or the specified point happening an of time dur- that there interval It be so worded may may it cannot but which which the class increase may during ing this kind of gift most common decrease. The example a class and in members of is one which vests in the existing of the class as thereafter become members such other persons 3 Page, of time or event which specified. point up 1052. It is considered sec. ed.), p. Wills (lifetime *8 testator born after the death the the three grandchildren of the are members corpus before the distribution and as inherit such. class and conclude to be without of res we adjudicata,
The question class, a to a to wit: the deceased made gift merit. In his will herein, construed such As previously His grandchildren. in after his death until increase membership class might be determined as of the of time to of a fixed point the arrival The reaches the of thirty. first age when the grandchild date in of the class and the members existing vested in bequest members, until thereafter became up other persons such when the first distribution corpus a of time such point was directed to be made. At the time the will was admitted there were then in probate, existence six grandchildren class, who were members of the with the of an in- possibility crease in the before the membership distribution point would be reached.
The appellant contends that the final decree in entered the estate construed the as not the bequest permitting opening up of the class after the death of the testator to admit after-born grandchildren, and that such determination is res adjudicata as to the of all after-born rights grandchildren. petition the 27, will for propounding was made probate January In those it was ordered that proceedings notice of hearing in News, published the Home a Weekly newspaper published Green, in Spring Wisconsin. The publication was made. Prior to the admission of the will to the court probate, litem, ad appointed guardian that the six reciting grand- children estate, were minors interested in said and included therein the words ad litem for “guardian said minors and for all unknown minors and for the incompetents sole purpose for them appearing and care of taking their interests in the in the said matter.” proceedings 7th, On February the will was admitted to 17th, On March probate. the letters issued, were testamentary and the inventory properly filed. The final account and petition settlement were dated 2, 1941; August and on 6th of August that year the court directed that the be held on the hearing account, final that notice thereof be given by publication the Weekly Home News. In the order determining tax, inheritance $50,000 one sixth of the trust estate was taxed to each of who survived the April decedent. On entered, final was judgment court found that the deceased was survived by widow and his children and the six by grandchildren. The First National Bank of Madison was trustee. appointed The trust estate created bequest, referred to in the final judgment, was assigned such final decree as follows:
469 Evans, F. Evan Barbara A. Perry, “To Maxine A. Perry, Evans, E. Wayne Pope, Keith A. and Pope, Thomas E. less the sum of Thousand Fifty ($50,000), grandchildren, executor been said as have heretofore paid such amounts for inheritance tax of each such shares the distributive upon the First held in trust by . . . the same to be grandchild, National Bank of Wisconsin, Madison, to the terms subject as forth in the will of said deceased and conditions as set follows: until said be allowed to accumulate
“That the income shall become of legal age. shall respectively he of each becomes legal age “That when such grandchild accumulated his share of such shall receive income, proportionate his share thereafter all income on proportionate until he reaches the of age to him annually shall be paid thirty years. becomes thirty years
“That when each such grandchild of said his full share of the of he shall be principal age paid thereon.” trust, all interest accumulated with together the first Thereafter, as of the date that grand- commencing has interest to the of the trustee paid child became age, 26, March and on the judgment; provided grandchild of the oldest such Maxine A. Perry (Tesia), when the trustee years, attained the age thirty grandchildren, and was dis- sixth of the trust corpus to her one paid as trustee to her. charged one have been born Alice Pope Draper,
Three children deceased, deceased, since the death of the children 1, 1945; Margaret born on November Draper, to wit: Walter 13, 1951; Susan K. on born February Anne Draper, born on Draper, June 9, 1955, been advised the trustee having On August and being born of such grandchildren, the birth subsequently an interest have as to whether they might possibly concerned trust, the judgment the court to construe such petitioned the deceased to so determine. appellant the will of judi- res ad entered 1942 is that the judgment trustee urges death those born after the all including cata as to persons, *10 litem, of the decedent. The ad for the guardian appearing after-born that have never had grandchildren, urges they court, their in that from time for of the day the petition Evans, 27, 1940, of the will of C. on probate January John and the in there entire the court through county proceedings has been someone never or these after- anyone representing children, born who are members of the class to which plainly $50,000 the was Their interests had never been bequeathed. consideration the of a given until appointment guardian 15, 1955, them on which occurred in the instant August proceedings. considered, court is is it not res county judgment, as to these after-born
adjudicata While it grandchildren. must be conceded that all notice which could have been given was, fact, the in these during probate proceedings given, after-born who an interest in the acquired birth, trust and whose are affected immediately upon rights the and never had judgment subsequent proceedings, rep- court, resentation in no be to consequently opportunity heard, and the court never jurisdiction over their acquired interests or over them as to exclude them from so membership so, in the class for in the will. This these provided being minors, them, had no one to whose interests having represent adverse, were not cannot be from in precluded membership When, the class not them. after by judgment binding upon the rendition of a events occur judgment, subsequent creating a new situation the or or relations legal altering legal rights from parties, judgment may precluded operating case, as an In earlier such is estoppel. adjudication not to bar a new action to vindicate permitted rights subsequently Am. 30 sec. 206. acquired. Jur., Judgments, p. Stiles, is Our attention called to the case of Bresee v. 22 *120, which holds that notice Wis. to make a necessary final and effective as against established clearly Oberbrunner, find, In Ruth v. 40 Wis. we rights. at 269, the statement page following of the court: “It is a in the administration justice, fundamental principle his of his without day no one shall be property deprived court, be heard.” The fact in an opportunity having to, in that, were the minors being those cases referred just extent of away property does not alter rule to the taking no consideration from to whom it was when those bequeathed at time the entering was to their given rights And, event, of these children one any preceding judgment. existence, been actual notice have be- was could given out, when Maxine fore first accumulated interest was paid *11 and each successive Perry Tesia became when twenty-one, the first sixth of became and before twenty-one, grandchild at Maxine the was allotted and the time Perry paid corpus Tesia became thirty. instructions,
The has asked for as it We may. agree trustee with ad litem for the after-born grandchildren the guardian that, been no to from the final there one having appeal judg- matter, ment in the the Evans it became incumbent upon trustee to ascertain what births of grandchildren, additional if intervened between the and the any, had date of judgment interest, of first of date the accumulated and what payment their if any. respon- were The trustee the rights, accepted trust, of the the terms and sibility subject to condi- holding deceased, set forth in the will of and tions as said will its in the reference that terms were incorporated Inbusch, Will 212 N. 193 Wis. W. judgment. of a There is in the record which would hold- permit nothing as other so situated be capable that there were to persons ing a the of for of interests of responsible representation It seem that there these later-born would grandchildren. record which would must be the something appearing was to the which that due consideration given rights indicate which these grandchildren vested in the class to after-born The if such after-born are to bound. belonged, persons for of to the court asks the construction addressed petition of will of the and the deceased rights 471a
these born after the grandchildren who were probate pro- were concluded and who were not mentioned there- ceedings theirs, in. Because these no fault respondents, through court, never their the final decree now have had under day not to them. consideration is res as adjudicata Inasmuch as and the trial court because held erroneously in the class each time a membership up new opened born, time until such as the entire trust grandchild corpus distributed, the must be was order modified to correct this error. other do not continue discussion of
We not questions a determination of the for material issues. necessary as Court.—Order modified so to By provide that in the class closed when the membership permanently oldest and, at arrived age thirty years grandchild so modified, it is affirmed. Cause remanded for further pro- to law. ceedings according was filed on March opinion 1957: following motion (on rehearing). has Nothing
Per Curiam for been in the briefs of .the presented motion support on the of the construction rehearing question of the class which we deem bequest requires any *12 alteration in our original opinion.
However, of as to the issue the final decree original being res as to the adjudicata unborn the conten- grandchildren, tion is that advanced we did not due give consideration to the fact that in are rem and probate proceedings not in However, as' personam. out the pointed United States court in Mullane v. Central Hanover supreme B. & T. Co. 306, 652, 70 339 U. S. 865, Ct. 94 L. Sup. Ed. the due- amendment, of the process requirements Fourteenth as re- notice and do not gards a hearing, depend distinction upon in between actions rem in and those personam, however use- ful such distinction be on may other issues. By we analogy consider such distinction to be immaterial as to whether
471b a a are concluded by particular judg- to proceeding strangers more latitude extended ment, that there except probably has been class or virtual representation there in finding an notice of the not received proceeding having of persons rem one in personam. action in than rem cannot any a rule a judgment As general deprive he where neither of or was property rights personal person nor notice a to the or given made party proceeding, oppor- S., 554, 555, 50 to be heard. C. Judgments, pp. tunity J. A to such rule is where recognized exception sec. class of has been virtual or such there representation person. us to the contention that there virtual This was brings of three unborn in the in- the grandchildren representation as a result of proceeding appointment stant probate all the ad and his the litem grandchildren par- guardian However, there can be no the ticipation proceeding. effect of the entered not persons binding upon of to the the virtual upon theory proceeding repre- parties sentation, are if the interests of such persons antagonistic it is or whom contended those party, parties, to the of such to the interests strangers represented proceeding. Am. sec. 228. Jur., Judgments, p. illustration, of if in instant the By way probate proceeding been that an child of a an issue had raised daughter adopted a member the class the testator should included as of of in- the court in the final decree had grandchildren, class, member of the the cluded such child a adopted being after-born would be thereby. three concluded grandchildren because ad for the This is the litem grandchildren guardian no to there would been was the have proceeding party between the the after-born position living antagonistic It would have been to' mutual interest grandchildren. all have child from excluded the class. adopted However, as out in in- pointed original opinion, after-born were terests antagonistic *13 the whether to those of as to the former living grandchildren 471c in
should be included the class. This there being prevented any virtual the after-born representation the ad as by litem so to make the final res guardian decree ad as to judicata such after-born grandchildren.
On this issue of representation virtual the trustee appellant 500, reliance v. 104 places great Ruggles upon Tyson, Wis. 766, 79 N. 81 N. 367. In the W. W. that case court con- sidered the of a court a sale power county to direct of real estate held trust as to so merchantable title as convey remaindermen, interests of against contingent including per- sons not born. It was held there was representation the interests unborn remaindermen the life tenant living remaindermen which made the bind- However, on all. was ing there no there between antagonism sale, the various remaindermen on the issue of it being to the interests of all to obtain as a sales good price pos- sible.
Perkins v. & I. 112 L. Co. Burlington Wis. W.N. 648, is also from the case. distinguishable instant It was there held that of an trustee active trust un- represents born remaindermen contingent beneficiaries proceeding remaindermen, where the first in an adversary proceeding trustee, to, successful, against and was sought wresting the land the trust as from the trustee constituting freed from the trust. Here was there no again interest be- antagonistic tween the trustee and the remaindermen as contingent the issue There was being no of collusion litigated. showing between the trustee the first remainderman who had suit, instituted and it must be that the presumed trustee properly defended the diligently action.
Our attention has been called to the of sec. provisions 323.10, Stats., this court its promulgated by under rule-mak- which section ing power, became effective September This section reads as follows:
47Id unascertainable, or “Possible unborn presently persons as interests in a trust estate successor or contingent having heirs, kin, beneficiaries, or next if hot already represented a in an accounting by a by fiduciary, may represented it The court necessary. ad litem if court deems guardian may dispense terminate the of a guard- with or appointment ian ad litem a a successor or person having contingent unborn, interest or who is legally presently incompetent, unascertainable, if a juris, there is sui having living person, interest, in the a identical who substantially judge’s opinion is counsel and whose interest is not adverse.” represented such section
While was not in effect when any pro- court, in the instant case took in the trial we ceedings place fail to see conflict between its and our any holding provisions herein. is sec. also made we failed to consider
Complaint 330.52, Stats. The of this statute dis- legislative history closes that it was enacted 1951 because United States court’s decision in the Mullane Its Case. supreme was to establish a statute of limitations purpose one-year action a or which is instituted to set aside any 10, 1951, action order entered before where the cause of June is of the notice even grounded upon inadequacy given, all statutory such notice with requirements though complied has as of the time the same was Such statute existing given. to the instant case. no whatsoever application re- brief on We have also been requested by appellant’s fact of the trial court that to delete the finding hearing Maxine Tesia oldest should have Perry (the grandchild) interest, of a received distribution of one-ninth instead interest, of the trust one-sixth corpus upon arriving at the Such accord with our thirty years. age finding can own determination of the issues on and we appeal, per- reason for it. ceive no deleting good The motion for is denied with costs. rehearing $25