Hughes v. Hughes, 91 Wis. 138

Hughes v. Hughes

91 Wis. 138 | Wis. | 1895

Cassoday, O. J.

1. It is contended on behalf of the administrator and Mrs. Hughes, that the devises of the real estate by the first and second clauses of the original will, as modified by the codicil, are void for the reason that they suspended “the absolute power of alienation . . . fora longer period than during the continuance of two lives in being at the creation of the estate,” and hence are repugnant to the statutes in force at the time of the death of the testator. R. S. secs. 2038, 2039. Such contention is very clearly untenable. By the first clause of the original will, two separate estates in the homestead were devised: One was a life estate to the widow, and that became vested in her immediately on the death of the testator; and the other was the remainder to the infant son, and that became vested immediately upon the death of the testator. R. S. sec. 2025; Saxton v. Webber, 83 Wis. 626; Balter v. McLeods Estate, 79 Wis. 534; Burnham v. Burnham, 79 Wis. 557. As each of such estates was vested, it was, of course, alienable. The codicil made no change in such devise to the widow, and the only change it made in such devise to the infant son was that in case he died, without leaving issue, before he attained the age of twenty-one, as he did, then such remainder so devised to him should, on the determination of the life estate to his mothei', be sold and converted into cash, and the avails thereof used in paying the legacies as directed in the codicil. The rights of such legatees named in the codicil to have such real estate so sold and converted, and the avails thereof so applied, were, at the time of the creation of such estate in remainder, purely contingent upon the infant son’s dying *145without'issue before he réaehéd'his majority, and .the .same •remained so contingent until he did so die, and then, immediately, the equitable right, to the same' became vested in such legatees, to the extent that they might prevent any destruction or waste of the property so devised, by the life tenant or any one. The mere fact, that the right to sell, convert, and pay such legacies out of the avails thereof is, by the terms of the codicil, postponed from the death of the son to the termination of his mother’s life estate, did not have the effect to suspend the power of alienation longer than the life of Mrs. Hughes, —’even if it suspended it at all, which may be doubtful. The only contingent estate terminated on the death of the son. "What has been said is applicable to the devise of real estate by the second clause of the will, as modified by the codicil. The only difference is that by that clause the testator vested the life estate in two persons-, — his mother and sister, — jointly, so long as they both should live, “ and to the survivor of them daring her natural life.” But, as indicated, that did not have the •effect to suspend the power of alienation longer than those two lives, even if it suspended the same for one life, or at all. It follows that the second item of the judgment correctly construed the devises mentioned.

2. The legacies which' were thus directed by the codicil to be paid out of the avails of the real estate in case the infant son died before he was of age, without issue, were six in number, and amounted in the aggregate to $2,410. By the fifth clause of the -original will the testator directed that-in the event of his infant son’s death without issue,.before •attaining his majority, then the several legacies therein mentioned (being six- in number, and aggregating' .in amount '$2,700) should be paid, without designating the specific prop•erty out of which -the same should be paid. Legacies so given, under our statute, would seem to be first payable out of the personal estate, if the same is sufficient. B. S. sec. *1463899. •' The - rule at common- law is stated by Mr. Hawkins; thus: “Legacies and annuities given generally, without reference to any particular fund, are, of course, payable out off the personal estate, and the rule with respect to exoneration applies to them.” Hawkins, Wills, 289. See Reynolds v. Reynolds' Ex'rs, 16 N. Y. 257; Goodrich's Estate, 38 Wis. 492. But the testator has, by the codicil, expressly declared “ that it was and is my will and desire that each and all of the several bequests and legacies by me heretofore made in the fifth item of my said will, made by me on the said fifth day of July, A. D. 1873, he paid out of my personal estate, and from, no other source.” As indicated in the foregoing statement,, there was only $2,207.15 of personal property belonging to the estate. Of that amount, $2,000 consists of the Hartson mortgage, the principal of which, by the fourth clause of' the original will, was given to the infant son; and the current interest thereon was thereby directed to be paid to his. wife, for the support and maintenance of herself and son,, and the education of the son. But that was modified by the-clause of the codicil quoted. It follows that the personal property mentioned must be applied in payment of the legacies mentioned in the fifth clause of the original will, as directed in the codicil.

By the Oowrt.— Those portions of the judgment and decree appealed from by the plaintiff and Mrs. Elizabeth Hughes are affirmed; and those portions from which all the defend'^ ants except Mrs. Hughes and Hate Madden appealed are reversed, and the cause is remanded for further proceedings according to law. The costs and disbursements of all parties in this court are payable out of the estate. The county court is at liberty to make such allowance to the respective-parties out of the estate, for counsel fees in this court, as, in the exercise of a sound discretion, may be just.