Ford v. Ford, 70 Wis. 19

70 Wis. 19 | Wis. | 1887

The following opinion was filed June 1, 1887:

Cassoday, J.

At the time of the testator’s death, and for several years immediately prior thereto, his residence and domicile were in the city of Madison, Wisconsin. As stated, he left personal property, and large amounts of valuable lands in Wisconsin, Michigan, Iowa, Kansas, and Missouri. His widow and little boy, Marcus C., and his three brothers and Hamilton College, are the sole objects of his bounty. The will is unique. It is said to have been drawn by the testator himself. It may be doubtful whether it would have presented more intricate questions for solution had it been drawn by a skilful lawyer with that end in view. Its validity is challenged as a whole and in parts, and a construction is demanded. The language employed seems to be sufficiently clear to indicate the purposes intended. The difficulties arise in applying the law to such purposes. Before proceeding to make such application it may be well to state a few general rules of law applicable to the case, readily deducible from the authorities and virtually conceded by all.

1. The validity of every devise or disposition of real estate by will must be governed by the law of the place where the land is situated, and this includes not only the form and mode of the execution of the will, but also the lawful power and authority of the testator to make such disposition. Story, Confl. Laws, § 474, and note; 2 Greenl. Ev. § 670; 1 Redf. Wills, 398, subd. 8; Robertson v. Pickrell, 109 U. S. 608; White v. Howard, 46 N. Y. 144. The importance of this proposition in considering the validity of a will covering lands in so many different states will be appreciated by all.

2. On the contrary, although not as well defined, nor as extensively enforced, yet the authorities clearly support the proposition that the validity of a bequest or disposition of personal property by last will and testament must be governed by the law of the testator’s domicile at the time of his death, and this includes not only the form and mode of the execution of the will, but also the lawful power and authority of the testator to make such disposition; and especially is this true where, as here, the testator’s domicile at the time of making his will continues to be the same until the time of his death. Story, Confl. Laws, §§ 467, 468; Stewart v. McMartin, 5 Barb. 438; Moultrie v. Hunt, 23 N. Y. 394; Nat v. Coons, 10 Mo. 543; Desesbats v. Berquier, 1 Bin. 336; S. C. 2 Am. Dec. 448; Somerville v. Somerville, 5 Ves. Jr. 750, 786; Anstruther v. Chalmer, 2 Sim. 1; Price v. Dewhurst, 8 Sim. 279; S. C. on appeal, 4 Mylne & C. 76; Enohin v. Wylie, 8 Jur. (U. S.), 897; S. C. 10 H. L. Cas. 1; Crispin v. Doglioni, 8 Jur. (N. S.), 653; S. C. on appeal, L. R. 1 H. L. App. Cas. 301; Eames v. Hacon, L. R. 16 Ch. Div. 407; S. C. on appeal, L. R. 18 Oh. Div. 347. This is not shaken by the criticism of Lord Westbury’s opinion in Enohin v. Wylie, supra, by the Earl of Selborne, L. C., in Ewing v. Ewing, L. E. 9 App. Cas. 39.

3. The same rule, as to the law of the testator’s domicile, governs in the interpretation or construction of wills. Story, flnnfl. Laws, §§ 479®-479c; Van Steenwyck v. Washburn, 59 Wis. 510. In the words of Mr. Justice Story: “The language of wills is not of universal interpretation, having the same precise import in all countries and under all circumstances. They are supposed to speak the sense of the testator according to the received laws or usages of the country where he is domiciled, by a sort of tacit reference, unless there is something in the language which repels or controls such a conclusion.” Harrison v. Nixon, 9 Pet. 504; Trotter v. Trotter, 4 Bligh (N. S.), 502; Enohin v. Wylie, supra; Chamberlain v. Napier, L. E. 15 Ch. Div. 614. The general rule is the same respecting real estate, whenever the object is merely to ascertain the meaning and intent of the testator from the language employed in the will. Ibid.; 2 Greenl. Ev. § 611.

With these general propositions in mind, we may, without infringing any rule of interstate comity, venture to ascertain, if we can, the intention of the testator as disclosed in this will, and also its validity, at least as to certain portions of the property.

4. The papers coming from the county court must be taken as the will of the testator. Thornton v. Curling, 8 Sim. 310; Price v. Dewhurst, supra. They consist in what has been called the will, with Schedules A and B therein mentioned and thereunto attached. In construing the will, we are to consider these three papers as one instrument in law, and together constituting the will of the testator. Ackerly v. Vernon, Com. 381; S. C. affirmed on appeal, 3 Brown, Parl. Cas. 91; Hill v. Chapman, 1 Ves. Jr. 401; Habergham v. Vincent, 2 Ves. Jr. 204; Jackson v. Babcock, 12 Johns. 394; Loving v. Sumner, 23 Pick. 102; Baker's Appeal, 107 Pa. St. 381; Fickle v. Snepp, 97 Ind. 289; S. C. 49 Am. Rep. 449.

5. It is claimed on the part of the executor that, under the directions of the will, all the personal property and all the real estate outside of Missouri must, for the purpose of determining the validity of the will or some of its provisions, be regarded as converted and permanently invested in lands in Kansas City, Missouri, under the well-known doctrine of equitable conversion. That doctrine is firmly established ; and if it applies, or in so far as it applies, it must be enforced. It may be well to restate it, with some of its limitations. As long ago as the time-of Lord Chancellor Thublow it was observed by him “ that nothing was better established than this principle: that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this, in whatever manner the direction is given, — whether by will” or otherwise. “The owner of the fund, or the contracting parties, may make land money, or money land. The cases established this rule universally. If any difficulty has arisen, it has arisen from special circumstances.” Fletcher v. Ashburner, 1 Brown, Oh. 499. This was expressly sanctioned by the supreme court of the United States at an early day. Craig v. Leslie, 3 Wheat. 577. The reason for the rule is there stated by Mr. Justice "Washietg-tobt, speaking for the whole court, thus: “The principle upon which the whole of this doctrine is founded, is that a court of equity, regarding the substance and not the mere form and circumstances of agreements and other instruments, considers things directed or agreed to be done as having been actually performed, where nothing has intervened which ought to prevent a performance.” From that and other cases the late chief justice of this court deduced this general rule: “ When a will contains a power of sale not mandatory in terms, but it is apparent from the general scope and tenor of the will that the testator intended all his realty to be sold, the .power of sale will be held imperative, and the doctrine- of equitable conversion applied.” Dodge v. Williams, 46 Wis. 97; De Wolf v. Lawson, 61 Wis. 477-479.

In Pennsylvania it has been held “ that the equitable conversion of realty into personalty, by force of a direction in a deed or will to sell, only takes place where the direction is positive and absolute; . . . that if a proposed sale is contingent or eventual in a deed or will, equitable conversion does not follow.” Neely v. Grantham, 58 Pa. St. 487.. But the better opinion seems to be as in effect held in Dodge v. Williams, supra, that whenever a direction to convert is apparent from the whole will, whether expressed or implied, then the duty and obligation to convert is imperative, and the doctrine of equitable conversion applies. Thus, in White v. Howard, 46 N. Y. 162, GbovbR, J., speaking for the court, said: “ To constitute a conversion of real estate into personal, in the absence of an actual sale, it must be made the duty of, and obligatory upon, the trustees to sell it in any event. Such conversion rests upon the principle that equity considers that as done which ought to have been done. A mere discretionary power of selling produces no such result.” Power v. Gassidy, 19 N. Y. 613, 614; Hobson v. Hale, 95 N. Y. 605. So it has been held that, “ where the general scheme of the will requires a conversion, the power of sale, although not in terms imperative, operates as a conversion; and this will be deemed to be immediate, although the donee of the power is vested, for the benefit of the estate, with a discretion as to the time of sale.” Lent v. Howard, 89 N. Y. 169; Ingrem v. Mackey, 5 Redf. 357. Rut the will must, in terms or by necessary implication, disclose an intent to convert, in order to sustain the theory of equitable conversion. Hobson v. Hale, supra.

6. Having thus stated some of the principles and some of the facts upon which the doctrine of equitable conversion rests, it becomes necessary to consider the application of those principles to some of the provisions of this will.

{a) The lands in Iowa are nowhere mentioned or referred to in the will or either of the schedules. This being so, it is manifest that the doctrine of equitable conversion has no application to them. They must therefore be regarded as lands in Iowa; and the validity of the will respecting such lands be determined by the laws of Iowa.

(b) The several pieces of land specifically described in Schedule B are all situated in Kansas City, Missouri. Considering that schedule in connection with subdivision 5 of the will, of which it forms a part, as we must, and the directions thereby given, to the executors are that they “ shall, at”'their “discretion,” “either” sell the several pieces oí lands so described in Schedule B, and invest the proceeds thereof in more desirable rentable property in Kansas City, or use said proceeds in improving some of the testator’s Kansas City properties. This mere discretionary authority can in no sense operate as an equitable conversion,— certainly not until an actual conversion should in fact occur. Besides, such conversion of the lands described, into other lands in the same city and state, could in no way affect or change their legal status. So they must be regarded as lands in Missouri, in determining the validity of the will respecting the same.

(o) By the sixth subdivision of the will, the testator expressly directs that all moneys, notes, bonds, mortgages, or other evidence of indebtedness to him from any and all parties, except his brothers, “shall, as soon as practicable-after ” his death, “ be used either in the purchase of property'in Kansas City, or for improving properties in said city then on hand.” This clause of the will relates particularly to the $30,000 of personal property in dispute; and which, for the purposes of these appeals, is assumed to be the property of the estate. The direction to so convert is not prevented from being imperative by adding “as soon as practicable after ” his death, and thus giving some discretion as to the time or times of such, conversion. If such permanent investment of such personal estate in lands in Kansas City can be lawfully made, and then lawfully held as lands in Kansas City during the time and for the purposes expressed in the will, then there can be no doubt but what, subject to the widow’s rights therein as hereinafter stated, the doctrine of. equitable conversion is applicable to such personal estate, and in that event the same is accordingly to be regarded as lands in Missouri from the time of the testator’s death; otherwise not. In other words, since the right to so convert is dependent upon the right to so invest and hold, the legality of such equitable conversion is dependent upon the same right to so invest and hold. Whether such investment and holding would be lawful or unlawful will be considered hereafter.

(d) The several pieces of land specifically described ■ in Schedule A consist of the homestead in Madison, Wisconsin, and lands in Michigan and Kansas. As the directions in relation to the homestead differ from the directions in relation to the other lands, the homestead will be considered by itself hereafter. Considering Schedule A in connection with subdivision 4 of the will, of which it forms a part, as we must, and the directions thereby given as to the several pieces of land in Michigan and Kansas are to the effect that each and all of said pieces of land “ shall be converted, as soon as practicable, after ” the testator’s death, “ at schedule •prices, or as much better as may be, . . . into good rentable ‘ inside ’ property in Kansas City, Mo.” The testator manifestly had an exalted opinion of the present and future of Kansas City. The scheme of his will indicates an intention to have his lands in Michigan and Kansas sold as soon as practicable, and the proceeds thereof invested in real estate in Kansas City. He directs, in effect, that the several pieces of land mentioned shall be so converted as soon as practicable after his death. Is such purpose to be frustrated merely by adding “ at schedule prices, or as much better as may be ” ? On the contrary, were not those words added as a guide to his executors, or for the purpose of stimulating purchasers to pay a larger price ? It seems to us that such was his intent, for, apparently with the same view, he added to the schedule price of each piece a still larger estimated value. Of course, it may turn out to bo impossible to ever sell some of the pieces at the schedule price; and yet there is nothing in the will indicating that he ever contemplated such a result, or any permanent holding of such lands as a part of the estate, as is plainly indicated as to the Missouri lands. There are no negative words indicating an Intent not to have any of the lands in Michigan or‘Kansas sold at a less price. As indicated in another connection, some discretion may be given as to the time or times of making such sales and investments, without preventing the application of the doctrine of equitable conversion. ‘ The only purpose manifest in the will for selling any of the Michigan or Kansas lands is to invest the proceeds of such sales in real estate in Kansas City, and then to hold such lands in that city as a part of the estate during the time and for the purposes indicated in the will. If such permanent investment can be lawfully made, and such lands so lawfully held, then we discover no reason why the doctrine of equitable conversion should not apply to them. Nevertheless, the legality of such equitable conversion is necessarily dependent upon theriight to so invest and hold. Whether such investment and holding would be lawful or unlawful will be further considered hereafter. What has been thus said is not b}’’ way of determining the validity of the title to any lands outside of Wisconsin, nor the validity of any investment or trust in or tenure of such lands, but merety to ascertain the meaning and intent of the testator from the language employed in the will, which, as we have seen, is a duty devolving upon this jurisdiction.

(e) In regard to the homestead, the directions are, in effect, that it shall be converted, as soon as practicable after his death, into good rentable “ inside ” property in Kansas City, Missouri, “at schedule price” which is $10,000, or as much better as may be; and then, by subdivision 7 of the will, the testator directs, in effect, that his wife shall have the use of his homestead, furniture, and appurtenances so long as she may desire to live in it as her home; and that in case she at any time ceases to desire it as her home, he directs that, as soon thereafter as practicable, it be sold !< at a price not less ” than $10,000, or as much more as the property will bring, and the proceeds thereof be invested in good rentable property in Kansas City, Missouri, and the rentals of such property be added to the income of the estate. Here are directions to sell and to invest the proceeds in real estate in Kansas City, it is true, but they are accompanied by other directions not to sell nor to so invest until after the concurrence of two events; one being that the widow shall cease to desire it as her home, and the other is that it be sold at a price not less than $10,000. The word “homestead,” as used in the will, manifestly means the house and all the grounds where the testator lived, and is not restricted to the one-fourth of an acre mentioned in the statute. Sec. 2983, R. S. As stated, the widow has elected to take the provisions made for her by law, instead of the provisions made for her in the will, as required by the statutes. Sec. 2172. Upon making such election, the widow at once became entitled to the same dower in the testator’s lands, and the same rights to the homestead, and the s'ame share of his personal estate, as if he had died intestate, except that the share of personal estate which she so took was restricted to one third part of his net personal estate. Secs. 2172, 3935, R. S.; Leach v. Leach, 65 Wis. 291. Since the testator left a son as well as widow, her right to the homestead thus secured by such election is the right to such statutory homestead of one fourth of an acre during her widowhood, and dower in the balance of the land connected therewith. Subd. 2, sec. 2271, R. S. In other words, the extent and duration of her right in the homestead has been diminished by such election.

Can we hold that the direction in the will to sell the homestead and invest the proceeds as indicated, works an equitable conversion of the estate into Missouri lands? As observed, there is no such direction to convert until the widow ceases to desire it for a home. Presumably this will not occur during her widowhood, which may be regarded as equivalent to a life estate. But the sale is expressly forbidden, even after the termination of the widow’s right, aUany price less than that specified. To apply the doctrine of equitable conversion to lands which are directed not to be sold until the termination of such life estate, nor then, except in an uncertain event which may never occur, would be to stretch that doctrine beyond anything authorized by or contemplated in the authorities. We must therefore hold that the homestead must be regarded as lands in Wisconsin, and accordingly the validity of the will respecting the same must be determined by the laws of Wisconsin.

7. Before determining such validity, and to aid such determination, it becomes necessary to ascertain, if we can, more fully the intention and meaning of the testator as disclosed by the language employed in other parts of his will. Undoubtedly the legal title to the personal property belonging to the estate is vested in the executor. Scott v. West, 63 Wis. 555, 556. Of course he holds the same for the benefit of the cestui-que-trusts, including the rights of the widow as indicated in the sections of the statute cited above. So far as the law will permit, the executor, by virtue of the will, has acquired all the rights therein given, and is charged with all the obligations therein imposed. Ibid. The several directions in the will are addressed to him and his successors in office and his subordinates, whether by ancillary administration or otherwise. He and they are to execute the will so far as the law will permit. He and they are to pay the testator’s lawful debts and funeral expenses from moneys on hand at his death, and, if they are insufficient, then the balance from the income of the estate. He and they are to pay the necessary expenses of carrying the estate from year to year from the income thereof. The will impliedly excludes the whole of the homestead, while occupied by the widow as such, from being a source of income to the estate, but provides that in case of its conversion as indicated, then the rentals of such newly acquired property are to be added to the income of the estate.

By the election of the widow to take under the statute instead of the will, the bequest to her in the eighth subdivision of the will of “ one quarter of the net annual income of the remainder ” of the “ estate during her natural life,” which by the twelfth subdivision was to be kept up to $1,500 from the share of the income given to the son, becomes inoperative. By such election a portion of the home property not included in the statutory homestead nor the widow’s right of dower in the balance, might be the source of a trifling income to the estate; but this would be dependent upon the validity of the provision in the will for the future conversion of the homestead, of which we shall presently speak. By the direction in the ninth subdivision of the will the son is to have one quarter of the net annual income of the estate (exclusive of the homestead) until, under the provisions of the will, he comes into the possession of the entire estate, except as the same may be sooner terminated by his death. By the direction in the tenth subdivision of the will the brother Edward Irving is to have one quarter .of the net annual income of the estate (exclusive of the homestead) during his natural life. By the direction in the eleventh subdivision of the will the brothers Joseph. O. and Henry T. were “each” to have one eighth of the net annual income of the estate (exclusive of the homestead) during their natural lives. Such bequests annually from the “net annual income” of the estate are clearly severable, as each is independent of the other and almost necessarily must terminate at a different time than any of the others. Since the annual share of each such legatee is each year confined to such “ one quarter ” or “ one eighth ” of such net annual income of the estate, it manifestly cannot be increased by the one-quarter of such net annual income now undisposed of by reason of the election of the widow. As the undisposed of one-fourth of such net annual income cannot arise from the rents, issues, or profits of lands in "Wisconsin, but must arise from the rents, issues, and profits of lands outside of this state, or from the personal estate liable to be treated as converted into Missouri lands as indicated, we reserve further consideration of the question whether the accumulation of such undisposed of net annual income into the residuum of the estate would or would not be valid. Manifestly, it is the theory of the will that the several fractional shares of such net annual income thus bequeathed will from time to time be diminished, as portions of the corpus of the estate may pass' to Marcus under the twelfth clause of the will; for, the moment he may become the absolute owner in fee of any portion of the land thereby devised, that moment such portion will become segregated from the estate and thereby relieved from every provision of the will. So, whatever property the widow, by reason of her election, takes under the statutes of the several states, becomes in like manner segregated from the .estate. It is only the one-quarter or the one-eighth of the net annual income of the testator’s estate that is. thus bequeathed; not such fractional share of the net annual income of what may become the estate of Marcus or the widow.

By the will Marcus is to have no portion of the corpus of the estate, except as he becomes entitled to it under the direction in the twelfth subdivision of the will, and by such direction he is only to become the owner in fee of a portion of the corpus of the estate when he “ reaches his majority,” and then additional instalments of such corpus from time to time until he reaches the age of forty years, when “ the remainder ” of the “ estate ” is to become his. But in the event of Marcus dying “ after reaching his majority, leaving one or more legitimate children of his body,” then the direction of the thirteenth subdivision of the will is “ that the income of forty thousand dollars’ worth of ” his “ estate, or so much thereof as may in prudence be necessary, shall be used for the proper support of such child or children, until they shall severally become of legal age, when an equal part of the above-named principal and accrued interest shall become his or hers absolutely.” That is to say, immediately upon the death of Marcus after so reaching his majority and before becoming forty years of age, leaving such child or children him surviving, the $40,000 “ worth of” the “estate,” if there shall be so much, is to be regarded as segregated from the rest and held in trust for them “'until they shall severally become of legal age,” as therein directed. “In the event” that Marcus “shall survive all” the “ other legatees,” that is to say, shall survive the widow and each of the three brothers, “ and then die before coming into the possession ” of the “ whole estate,” then the fourteenth subdivision of the will directs “that the remainder” of the “estate, as of that date, shall belong to Hamilton College.” But the words “ the remainder of my estate,” as here used, cannot mean what will be the entire estate at the time of such death of Marcus, unless it so happens that upon such death he leaves no such child or children him surviving. But in case he does leave such child or children him surviving, then such “ remainder ” of the estate will only be what may remain of such estate after setting apart the $40,000 worth of the estate for the benefit of such child or children, as provided in the thirteenth subdivision of the will. Such must be the construction, for, unless the words “ the remainder of my estate ” be so limited, the fourteenth subdivision of the will would be clearly repugnant to the provisions made for such 6hild or children in the thirteenth subdivision, for it could not have been the intention to give as a remainder of the estate, to Hamilton College, the $40,000 which might thus be set apart for such child or children.

If either the wife or one of the brothers shall become the only surviving legatee, then lim that event” the fifteenth subdivision of the will directs that the “estate at that time be divided as nearly as may be into two equal parts as regards value and renting power, and said wife or brother shall then choose between the incomes of said two properties, and have and enjoy the same during his or her natural life; ” and “ the other part ” of the “ estate shall at that date become the property of Hamilton College;” and “at the death of said wife or brother the remaining part” of the “estate shall become the property of Hamilton College.” The words “ my only surviving legatee,” as used in this last subdivision of the will, imply, at least, that all other legatees named in the will and living at the time of the testator’s death, including Marcus, shall, previous to the time of such sole survivorship, have died leaving some portion of the corpus of the estate which had not before passed to the widow, to Marcus, or for the benefit of such child or children by segregation, as indicated. It may occur that all three brothers die before Marcus, or that the widow and two of the brothers die before Marcus, and then, after reaching his majority, Marcus dies, leaving one or more such children him surviving. In that event, the words, “ my estate at that time be divided as nearly as may be into two equal parts,” as used in the last subdivision of the will, manifestly mean only so much of the estate as may then remain after setting apart the $40,000 worth of the estate for the benefit of such child or children, as provided in the thirteenth subdivision of the will.

Such are the provisions of the will we are called upon to consider: Undoubtedly the will created in the executor an express trust, within the meaning of sec. 2081, E. S. In fact lie is required to do much more than to merely sell or lease lands for the benefit of legatees. He is required to do much more than merely to receive the rents and profits of lands and apply them to the use of a person during the life of such person or for any shorter term. He is required to do much more than merely to receive the rents and profits of lands and to accumulate the same for any of the purposes and within the limits of ch. 95, R. S. He manifestly is to take, hold, and manage the estate for the beneficial interest of the several persons living and to be born as indicated. Such duties clearly imply that he is to take a legal title to the whole estate in trust for the purposes mentioned. Scott v. West, 63 Wis. 558-562; sec. 2086, R. S.

The will throughout deals with the estate'of the testator. It uses the words “ my estate,” or their equivalent, some sixteen different times. It is such estate that the executor and his successor and subordinates are charged by the will with managing, converting, renting, improving, gathering, and dividing and paying over the income annually, and from time to time segregating, and finally dividing the corpus of the estate, and then giving up the residuum. Subject to such segregations from time to time, they are required to so hold and manage the corpus of such estate until the same finally passes wholly to the son, at the age of forty (should he live so long), twenty-eight years after the testator’s death. Should he die after reaching his. majority and before becoming forty, leaving one or more such children, then such executor, etc., is required to set apart the $40,000 worth of said estate, which may include the Wisconsin land or even the whole of the remainder of the estate, and hold and manage the same until such children severally become of age. The time for such setting apart may commence soon after Marcus becomes twenty-one, or not until just before he reaches forty, and then continue twenty-one years thereafter. No one can tell how many of such children may be born, or whether any or how many may reach their majority.

Thus, according to the will, the estate, including the Wisconsin land,.is liable to be so tied up from thirty to forty-eight years after the testator’s death. But even if Marcus does not so die leaving such children, still, by the fourteenth .and fifteenth subdivisions of the will, the estate, including the Wisconsin land, is liable to be so tied up until Marcus .and the widow and the three brothers are all dead save one, either the widow or one of the brothers, as the “ only surviving legatee.” In other words, at least four, if not all, of these five persons, living at the time of the testator’s death, must die before either of those subdivisions of the will can become operative. During such periods, or large portions of them, it is impossible t.o tell where the corpus of the estate will finally go by the terms of the will. If Mar■cus lives long enough, then all is to go to him. If he dies during the nest nineteen years after he becomes of age, leaving children, then a large portion of it and possibly the whole may go to them. If he survives all the other legatees named, and then dies during that period, then a portion of it will probably go to Hamilton College; but no one can tell how much, nor, for certain, whether any. If he dies under twenty-one, even though he leave children him surviving, yet neither he, nor such children, nor his heirs at law, are to have any of such corpus. But even then such corpus is, by the will, to remain tied up during the times and for the purposes named, and only go to Hamilton College upon the occurrence of the events mentioned.

The necessity of the corpus of the estate being held by a trustee during such several periods and awaiting such several contingencies and possibilities, seems to be absolute. Scott v. West, supra. Such trustee or executor is directed to sell some lands and buy others, but he has no authority .under the will to pervert or alienate any portion of the estate, in contravention of the trust. . Sec. 2091, R. S.; De Wolf v. Lawson, 61 Wis. 475. In other words, the corpus of the estate is inalienable during the continuance of the trust. Should the trustee die, it would become necessary to appoint a successor; and even while he lives there may be a necessity for an ancillary administration.

Under this will and our statutes, can we hold that there is no unlawful suspension of the power of alienation as to this Wisconsin land? As indicated, upon the death of the testator the widow took under'the will a present life estate in that land; and she has now substantially the same under the statutes. According to the will, the executor, as trustee, took a future estate in trust in the same land, for it was “limited to commence in possession, at a future day.” Sec. 2034, R. S.; Scott v. West, 63 Wis. 570. “Future estates,” under our statute, “are either vested or contingent.” Sec. 2037, R. S. “They are vested when there is a person in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate.” Ibid. By the terms of the will, the trustee or executor was to take such future vested estate in the homestead. As to the other property he took a present vested estate. Coster v. Lorillard, 14 Wend. 302, 303. But neither Marcus nor Hamilton College had anything more than a contingent interest therein; for the statute expressly declares that such “ future estates . . . are contingent while the person to whom, or the event upon which, they are limited to take effect, remains uncertain.” Sec. 2037. “ These definitions of vested and contingent remainders,” said Savage, O. J"., “ are very different from the common-law definitions of those estates.” Coster v. Lorillard, 14 Wend. 301. They took no vested interest in the land, and could convey none. Secs. 2086, 2089, R. S.; De Wolf v. Lawson, 61 Wis. 475, 476. Under our statute, “ every future estate,” whether vested or contingent, is “ void in its creation,” which “suspends the absolute power of alienation . . . for a longer period than during the continuance of two lives in being at the creation of the estate,” etc. Secs. 2038, 2039, R. S.; De Wolf v. Lawson, 61 Wis. 473. The only exception to this, which is in sec. 2040, is clearly not applicable here.

To avoid all uncertainty, one of the same sections declares that such “absolute power of alienation shall not be suspended by any limitation or' condition whatever,” and the other declares that “such power is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.” Since the trustee cannot, under the will, relinquish the trust, which includes the “ possession,” until the purposes of the trust are fulfilled as the several periods for such fulfilment transpire; and since persons are liable to be born who by the terms of the instrument will be entitled to a large' portion, and possibly the whole, of what may then remain of the estate, including this homestead,— it is very obvious that “ there are no persons in being by whom an absolute fee in possession can be conveyed,” within the meaning of the statutes; and since this state of things must, under the will, continue for a longer period than two lives in being at the creation of the estate, such suspension, as to this homestead, must be adjudged contrary to the statute, and therefore absolutely void. Coster v. Lorillard, 14 Wend. 317-324; Hawley v. James, 16 Wend. 121, 122, 164, 165, 174-179.

It is impossible to escape this conclusion by speculating as to the probabilities of Marous and his unborn children eventually getting this Wisconsin land under the will. We have no authority to speculate upon the chances. The rule is universal that such suspension of the power of alienation must necessarily terminate, under any and all circumstances, within the period prescribed by the statute, or the disposition will be void. Schettler v. Smith, 41 N. Y. 328; Knox v. Jones, 41 N. Y. 397. Nor is it possible to escape such, conclusion on the theory that the trustee or executor merely has a power in trust to sell such homestead; for, as indicated, neither the future estate of Marcus nor Hamilton College therein is.anything more than contingent under our statutes. We must therefore hold that the attempted disposition of the homestead by the will is void, and that upon the death of the testator the same descended to Marcus, subject to the widow’s rights therein as indicated under the statutes.

8. It is strenuously urged, in effect, that, as the testatoi’’s residence and domicile were in this state at the time of making his will and his death, he could thereby create no valid trust except such as are sanctioned by the laws of this state. In other words, that he could not by such a will, under the doctrine of equitable conversiop, cause his personal property and his lands in Michigan and Kansas to be converted into lands in Kansas City, Missouri, and there held as his estate, and the power of the alienation thereof suspended beyond the time authorized by our statutes, even though such suspension would be valid under the laws of Missouri; and that the question as to the validity of such suspension is properly determinable by this jurisdiction. I frankly confess that I was deeply impressed upon the hearing with the plausibility and force of this argument. The will was here admitted to probate. The executor here qualified and received his commission from the county court. He is directly accountable to and subject to the orders of that court. There may, necessarily, be ancillary administrations in other states, but they will in law be subordinate to this, which must be regarded as the principal administration. But in such intricate matters of title and jurisdiction impressions are of no value unless supported by the logic of the law, if not by authority.

In Curtis v. Hutton, 14 Ves. Jr. 537, cited by counsel, the testator devised real estate in England in trust to be sold, and the proceeds of the sale, with the personal estate upon trust, to be laid out in lands for the maintenance of a charity in Scotland, and it was held void as to the real estate, but valid as to the personal property, by the effect of the option. The reason for holding such devise of such real estate in England void, as given by Sir William Gkaot, M. R., was that “ the owners of such property are disabled from disposing of it to any charitable use, except by deed executed twelve months before the death of the owner, etc., to take effect from the execution.” Page 541. Such disability of otherwise disposing of such land was held, in effect, could not be frustrated by the doctrine of equitable conversion. That decision is the foundation of sec. 479d of Story’s Conflict of Laws, which cannot be regarded as of any greater authority; nor does it squarely meet the question here presented. Mine years after that decision the same learned Master of the Rolls, in a case where the testator, by his will directed his executors to dispose of all his real and personal property at Grenada, in the West Indies, and remit the proceeds to England to be laid out as a charitable fund in the best manner possible, held that such directions were not void, as the statute of mortmain did not extend to Grenada. Attorney General v. Stewart, 2 Meriv. 143.

In Attorney General v. Mill, 2 Dow & C. 393, the testator by his will, made in England where he was at the time domiciled and so remained until his death, gave his personal and real estate (none of the latter being in England or Scotland, but in the West Indies) to trustees, to be laid out in the purchase of lands or rents of inheritance in fee simple, for a charitable purpose, at Montrose, in Scotland; and it was held by the Elouse of Lords, affirming the decree of the Chancellor, “ that the bequest was void by the statute of mortmain, it not appearing from the will that the testator intended that the trustees should have the option to purchase lands in Scotland.” The plain inference from, the opinion is that had the will directed the purchase of the lands in Scotland, then it would have been valid, as the law there did not prevent such purchase.

In Fordyce v. Bridges, 2 Phil. 515, Lord Chancellor Cot-tbnham, speaking of this subject, said: “An objection was made that the bequest of a fund to be invested in a regular Scotch entail was void as a perpetuity. The rules acted upon by the courts in this county with respect to testamentary dispositions tending to perpetuities, relate to this country only. What the law of Scotland may be upon such a subject, the courts of this country have no judicial knowledge, nor will they, I apprehend, inquire; the fund being to be administered in a foreign country is payable here, though the purpose to which it is to be applied would have been illegal if the administration of the fund had been to take place in this country. This is exemplified by the well-established rule in cases of bequests within the statutes of mortmain. A charity legacy void in this country under the statute of mortmain is good and payable here if for a charity in Scotland. . . . The objection raised upon the ground of perpetuity cannot be maintained.” This seems to be peculiarly applicable to the personal estate here,

It is said that Freke v. Lord Carbery, L. R. 16 Eq. Cas. 461, is to the contrary. In that case the testator was a domiciled Irishman in Ireland, who, after disposing of personal estate in trust, “gave his leasehold house in Belgrave square, England, to the same trustees, upon trust to sell” as directed, and to apply the proceeds in discharge of any incum-brance on the same, and the residue to invest in government or real securities, and hold the same upon such trusts as declared. “ The validity of the trusts for accumulation was not disputed, so far as they related to the testator’s government stocks and funds and other pure personalty. But the question was raised whether these trusts were valid as to the proceeds of the sale of the house in Belgrave square,” and it was held that uthe Thellusson act applied to the English leasehold and the proceeds of the sale thereof, and that the trust for accumulation of the investments of the proceeds of the sale in excess of- the periods permitted by that act was invalid.” This is clearly distinguishable from the other cases cited, and is an authority to the point that the law of the place where the land is situated governs as to the validity of its disposition by will, instead of the law of the testator’s domicile, as here claimed.

In the celebrated case of Hawley v. James, 5 Paige, 337, 16 Wend. 74, 381, and 7 Paige, 213, the testator was domiciled in Albany, New York. By his will he directed all his lands outside of New York city, Albany, and Syracuse, including 40,000 acres in the state of Illinois, to be sold, and the proceeds thereof to be invested in lands in the three cities named, upon trusts which, under the statutes like ours cited, were held void. But in respect to anj'- lands of the testator situated in the state of Illinois or elsewhere outside of the state of New York, the decree which was entered by the court of errors stated that it was not to be deemed a decision upon the title of the said trustees to those lands, or their power over them (16 Wend. 281), which question ■was thereby remitted for further consideration to the court of chancery. Upon the cause being remitted to the chancellor, an application was made for further directions in pursuance of such decree. Upon a full hearing, the learned chancellor said: “ This court has no jurisdiction to make a decree which will directly affect either the legal or equitable title to lands situated in another state. And if the legal title to the lands now in question was in any of the-infant parties according to the laws of Illinois, or if those-who had the legal title were out of the jurisdiction of this court, so that it would he impossible for it to operate upon them personally to compel them to execute the trust or to> convey the legal title according to the decree, I should consider it my duty to dismiss the application and to refer the parties to the courts of the state where the trust property is situated.” Then, after showing that the will had been executed in conformity to the laws of Illinois, so as to vest the legal title to the lands in that state in the trustees, and that as the object of the testator in directing a sale of the Illinois lands and a conversion of the same into money was to buy lands in the state of New York and hold them upon trusts which were contrary to the statutes of that state and therefore illegal, the trustees were deemed to hold the title to the Illinois lands in trust/b?* the heirs', and, as the trustees were all within the jurisdiction of the court, they were accordingly directed to convey the same to the heirs. 7 Paige, 213.

In Burrill v. Sheil, 2 Barb. 457, the testator, domiciled in New York, directed lands in that state to be sold and a portion of the proceeds invested in England; and, as no law was thereby violated, it was held that the courts of New York had no power to divert the investment from England and direct the same to be made in New York, except with the consent of all the parties interested; and, as some were infants, such consent could not be obtained.

In Bascom v. Albertson, 34 N. Y. 584, a bequest by a New York testator was made to five such persons as the supreme court of Yermont should appoint to be trustees, to found, establish, and manage an-institution for the education of females, to be located at Middlebury, Yermont, and it was held ineffectual for any purpose, since the object of the bequest was unlawful in the state of the testator’s domicile. This is in harmony with the second proposition announced in this opinion.

In Chamberlain v. Chamberlain, 43 N. Y. 424, the testator was domiciled in the state of New York, and, among other things, he bequeathed a certain amount to the “ Centenary Fund Society, a corporation created under the laws of Pennsylvania for charitable and benevolent purposes.” In passing upon its validity, the court held that “ the law of the testator’s domicile controls as to the formal requisites essential to the validity of the will, the capacity of the testator, and the construction of the instrument. When, by the lex domicilii, a will has all the formal requisites to pass title to personalty, the validity of particular bequests will depend upon the law of the domicile of the legatee, except in cases where the law of the domicile of the testator in terms forbids bequests for any particular purpose or in an}7 particular manner, in which latter case the bequest would be void everywhere.” The learned justice giving the opinion said: “ So far as the validity of bequests depends upon the general law and policy of the state affecting property and its acquisition generally, and relating to its accumulation and a suspension of ownership and the power of alienation, each state is sovereign as to all property within its territory, whether real or personal. It is no part of the policy of the state of Hew York to interdict perpetuities or gifts in mortmain in Pennsylvania or California. Each state determines those matters according to its own views of policy or right, and no other state has any interest in the question; and there is no reason why the courts of this state should follow the funds bequeathed to the Centenary Fund Society to Pennsylvania to see whether they will there be administered in all respects in strict harmony with our policy and our laws.” Page 434. To the same effect is Mapes v. Am. H. M. Soc. 33 Hun, 360; Bible Soc. v. Pendleton, 7 W. Va. 79.

This case of Chamberlain v. Chamberlain is in harmonj7' with subsequent decisions in the same state, in which it has been held, in effect, that, in the absence of any equitable conversion, the question as to the unlawful suspension of the power of alienation of lands in Hew York must be governed by the laws of that' state, notwithstanding the testator who attempted to dispose of the same was at the time of making his will and his death domiciled in some other state, as, for instance, in Connecticut, Massachusetts, or California.; as will appear by White v. Howard, 46 N. Y. 144; Despard v. Churchill, 53 N. Y. 192; Hobson v. Hale, 95 N. Y. 588. The only case cited which seems to be in conflict with the principles stated is Wood v. Wood, 5 Paige, 596. Rut that is expressly overruled in Chamberlain v. Chamberlain, 43 N. Y. 435, and impliedly so in other cases.

It is unnecessary to look -further into the authorities. The difficulty in holding that the laws and courts of this state may interdict the conversion of personal property into lands in Missouri, or lands in Michigan or Kansas into lands in Kansas City, is apparent when we remember that the laws of this state have no extra-territorial force, and the courts of Wisconsin have no extra-state jurisdiction. The principles of law thus indicated are in strict harmony with the rulings of this court in Van Steenwyck v. Washburn, 59 Wis. 510, 511.

We must therefore disclaim jurisdiction to determine the title to any of the lands outside of Wisconsin, or the legality of accumulations of rents and profits therefrom. It follows that the validity of the proposed conversion of personal property into lands in Kansas City must be determined by the laws and courts of Missouri. So the question of the validity of the proposed conversion of lands in other states into lands in the same city would seem to be determinable by the same jurisdiction, but of this we have no authority to decide. Such questions of the validity of such conversions should be determined at an early day by instituting the proper suit in the proper jurisdiction.

The costs and disbursements of all parties in this court and the circuit court are payable out of the estate. The county court will make such allowance to the respective parties out of the estate for counsel fees as, in the exercise of a sound discretion, may he just.

See Palms v. Palms, 36 N. W. Rep. (Mich.), 419.— Rep.

By the Court.— The judgment of the circuit court is reversed on each of the four appeals, and the cause is remanded with directions to enter judgment in accordance with, and to the extent indicated in, this opinion, but leaving open for further action the questions as to the validity -of such conversions, suspensions, and accumulations, until authoritatively determined by the rightful jurisdiction.

Motions for a rehearing, made by each of the several parties, were denied November 22, 1887.