Ford v. Ford

72 Wis. 621 | Wis. | 1888

Cassoday, J.

It is claimed that the portions of the judgment appealed from are either repugnant to other portions or not in conformity with the -opinion of this court on the former appeal. There seem to be some grounds for such contention, although they may not be sufficiently serious or of such a character as to work a reversal. ' The recitals in the judgment, as a part of the original findings and upon which the original judgment was based, undertake to state what the laws of Missouri, Kansas, and Michigan are, respectively, as to the postponement and the suspension of the power of alienation therein permitted; whereas this court expressly disclaimed jurisdiction to determine such laws as applicable to this will, even as to the personal property, much more as to the lands located in any of those states. But the immateriality of such recitals of law is made apparent by a similar disclaimer in the same judgment.

“It is further adjudged that the language found in subdivision 4 of said will [see 70 Wis. 22] . . . must b,e construed in connection with the language found in said Schedule A [70 Wis. 25, 26], and the court adjudges that, so construed, said testator intended from the language used that all of the propertymamed in Schedule A, except the homestead, should be sold by the executor, and the proceeds of said sale be invested in real estate in Kansas City, Missouri, and to be held and administered in that city as a part of the estate during the time and for the purposes indicated in the will, and according to the provision of said will; that is, that the language so used works an equitable conversion of the lands in said states of Kansas and Michigan into lands in Kansas City, Missouri; but the court holds and adjudges that the legality of such equitable conversion is necessarily dependent upon the right to so invest and so hold, and that whether such investing and holding would be lawful or unlawful is to be determined by the law of the state where the investing is to be made and the title held; and nb attempt is hereby made to determine the validity of the title to any lauds outside of Wisconsin, nor the validity of any investment or trust in or tenure of such lands, but merely to ascertain the meaning and intent of the testator from the language employed in the will.” The words in italics, standing alone, would be an attempt to adjudicate upon matters which this court repeatedly disclaimed any purpose of determining, and. hence remitted the same to other rightful jurisdictions. 70 Wis. 44 (1), 50-51 (d), 62-69 (8). By a careful reading of the passage quoted it will be observed that the words in italics are inserted as a mere paraphrase of the words which precede .them, which merely declare what the “testator intended from the.language used.” The words in italics, therefore, must be regarded merely as another way of stating what the “testator intended” by the use of the language employed. Besides, they are immediately followed by other words, which expressly declare that no attempt is thereby “made to determine 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 merely to ascertain the meaning and intent of the testator from the language employed in the will.”

True, the passage quoted contains this clause, to wit, “ that whether such investing and holding would be lawful or unlawful is to be determined-by the law of the state where the investing is to be made and the title held.” The learned counsel for the appellant complains, in effect, that this language remits to the laws and courts of Missouri the whole question of the legality of such “investing” in Missouri lands and then holding the same during the time indicated in the will, “ without reference to the laws of Kansas or Michigan, where the lands in question are situated.” Substantially the same question confronted this court upon the former appeal in respect to the personal property. The same counsel had contended with much force and plausibility, as intimated in the opinion, that the whole scheme of the will for converting the personal property into lands in Missouri, and the lands in Michigan and Kansas into lands in Missouri, there to be held in trust for the time and in the manner contemplated in the will, was in contravention and fraud of the laws of this state. After declaring that such proposed conversion of the personal property in no way contravened the laws of this state, the opinion of this court contains the following: “In other words, since the rigjht to so convert [the personal property] is dependent upoix the right to so invest and hold, the legality of such equitable conversion-is dependent upon the same right to so invest and hold.” 70 Wis. 50. “The difficulty of 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. . . . We must therefore disclaim jurisdiction to determine the title to any 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.” 70 Wis. 68.

What was thus said respecting the proposed conversion of lands in other states was called out by the nature of the controversy and the fact, apparent to any one, that, should the courts of Michigan or Kansas determine the will to be valid respecting the lands therein situated and the proposed conversion of such lands into lands in Missouri not in contravention of their own laws, still such courts would be confronted with substantially the same question that confronted us respecting such personal property, to wit, whether the proceeds of such property could be legally invested in lands in Missouri and held in trust during the time a'nd in the manner contemplated in the will,— a question which we felt bound to remit for determination to the laws and courts of Missouri, and directed the judgment to be held open to await such determination. Of course, should the Missouri courts finally decide adversely to the legality of such investment and holding, then such proposed conversion of the personal property could not be legally made, and the same would remain under the jurisdiction of the courts of the testator’s domicile. A similar result would seem to follow such adverse decision respecting the proposed conversion of lands in such other states — Renee the incidental remark in the alcove quotation. On the other hand, should the courts of Michigan or Kansas hold the will, or the proposed conversion of the lands therein situated, to be invalid, then they would pass out from under the operation of the will, and never become subject to the trust. The questions presented on the former appeal were necessarily many-sided, and much of the opinion is devoted to disclaimers of the right to determine certain questions, and the reasons and authorities in support of such disclaimers. By confining the language of the several parts of the opinion to the respective questions under discussion, the opinion will not only be found in harmony with itself, but it will appear therefrom that an especial effort was made by this court to conform strictly to wdiat was regarded as judicial interstate comity, and in no particular to invade the appropriate province of the courts of Michigan, Kansas, or Missouri, for each of which we have very great respect, and the opinions of which we frequently cite and follow.

But, to return to the portion of the judgment quoted, we are forced to conclude that it contains no substantial error. Especially is this so in view of other portions of the judgment, which areas follows: “And it is further adjudged that the court disclaims jurisdiction to determine, and does not determine, the title to any lands outside of the state of Wisconsin, nor the validity of the proposed conversion of lands in other states into lands in Kansas City, Missouri. It is farther adjudged that the executor, the plaintiff herein, is hereby directed to proceed and execute the said will and the trust created thereby, in all respects in conformity with, this judgment and the judgment^ decision, and opinion of said supreme court in the premises” This last clause must be regarded, not only as confirmatory of the opinion of this court, but as “leaving open for further action the questions as to the validity of such conversions, suspensions, and accumulations, until authoritatively determined by therightful jurisdiction,” as required by the mandate of this court on the former appeal. In order to pass intelligently upon the questions presented relative to the personal property and the lands in this state, it became necessary upon the former appeal to construe the wall as a whole in order to discover the nature, extent, and duration of the trust imposed. This was done. 70 Wis. 46-48 (5), 49-50 (6c), 51-53 (c), 53-62 (7). Such construction is followed in the opinion by a disclaimer of authority to determine the legality of such trust (except as to the lands in Wisconsin), and the other matters left open in the opinion, as above indicated. 70 Wis. 62-69. What is said in the judgment here appealed from in respect to the nattíre, extent, and duration of such-trust, and the respective rights of the several beneficiaries thereunder, must be regarded as held open and subject to determinations by the rightful jurisdictions, as indicated in that opinion. In fact the judgment is mostly provisional, and does leave open the validity of such trusts, conversions, suspensions, and accumulations until authoritatively determined by the rightful jurisdictions. This appears from what has already been quoted therefrom, and other passages which might be quoted.

There appears to be no material error in the record. We do not feel disposed, to change or modify the directions as to costs made on the! former appeal. But this is hot to be construed as authorizing any additional allowance by reason of this appeal.

By the Court.— The judgment of the circuit court is affirmed. The taxable costs in this court of the appellant (as ■well as the executor) are payable out of the estate.