120 Wis. 263 | Wis. | 1904
Lead Opinion
The point of contention in this case is the meaning of “my lawful heirs.” The respondents contend, and the trial court found, that the testator meant those persons who at his death were by law entitled to inherit his intestate real estate, to wit, his eight children. The appellants insist that he meant those persons who would by law have been entitled to inherit said realty, had testator died at the time of the termination of the two life estates, or on August 1Y, 1900, the day of the death of Maria Jobbins. The words themselves are not ambiguous, but-have a well-ascertained and definite meaning, entirely in accord with that ascribed to them by the trial court, supported by such dictionaries as Webster’s, the Century, and the Standard; also by 1 Bouvier, Law Die. 941, 942; Anderson’s Dic. 508; 2 Blackstone, Com. 201; Holloway v. Holloway, 5 Ves. Jr. 399; Rand v. Butler, 48 Conn. 293; McDaniel v. Allen, 64 Miss. 417, 1 South. 356; In re Tucker's Will, 63 Vt. 104, 21 Atl. 272; Buzby’s Appeal, 61 Pa. St. 111, 114; Brown v. Lawrence, 3 Cush. 390, 396; Childs v. Russell, 11 Metc. 16; Abbott v. Bradstreet, 3 Allen, 587; Lavery v. Fgan, 143 Mass. 389, 9 N. E. 747. The list of authorities might be extended much further, but it is unnecessary, for they are without substantial conflict, not only as to the primary meaning of the words,
Another question, suggested, probably by the Moran Case, has been mentioned, though hardly, discussed, upon the argument in this court. It does not appear to have been raised ■at ail in the circuit court. That question is, conceding the expression “legal heirs” to include only those living at testator’s death,' namely, his eight children, whether the intention was to give to them absolutely and as individuals, so that the interest of each became vested, in the common-law sense, or only to such members of that class as survived the period fixed for distribution and enjoyment. In the first view of testator’s intention, the issue of any deceased child would take as heirs of that child by representation. Scott v. West, 63 Wis. 529, 569, 24 N. W. 161, 25 N. W. 18; Patton v. Ludington, 103 Wis. 629, 647, 79 N. W. 1073; Smith v. Smith, 116 Wis. 570, 93 N. W. 452. In the latter they would not take at all. In re Albiston’s Est. 117 Wis. 272, 94 N. W. 169; In re Moran’s Will, 118 Wis. 177, 96 N. W. 367. The .judgment appealed from proceeds upon the former view. Under it, each of the appellants takes something, while, if the Utter view of testator’s purpose were adopted, they would none of them take anything. Therefore, if the judgment were held erroneous in this respect, it could in no wise prejudice or injure these appellants, but would merely unduly favor them. Since those prejudicially affected rest content, ■and do not appeal, we could not reverse the judgment for such an error. Sec. 2829, Stats. 1898; Decker v. Trilling, 24 Wis. 610, 615; Ackley v. Vilas, 79 Wis. 157, 48 N. W. 257; Keystone L. Co. v. Kolman, 103 Wis. 300, 303, 79 N. W. 224.
By the Court. — Judgment affirmed.
Concurrence Opinion
I concur in affirming the judgment of the trial court in this case, but not in all that is said in the opinion of my Brother Dodge. The language of the will is very plain and simple. Upon the death of the testator, and by the express terms of the will and the well-established rules of construction, as I read the authorities, the estate became vested in the testator’s “lawful heirs” — being his eight children who then survived him — subject only to the two intervening life estates therein mentioned. This being so, on the-death of any one of such children his share of such estate necessarily descended to his heirs’at law. Sees. 2270, 2289, Stats. 1898. That such is the well-recognized rule of law, I refer to the following as a few of the many cases that might be cited: Moore v. Lyons, 25 Wend. 119; Livingston v. Greene, 52 N. Y. 118, 123; Kelly v. Kelly, 61 N. Y. 47; Van Axte v. Fisher, 117 N. Y. 401, 22 N. E. 943; Nelson v. Russell, 135 N. Y. 137, 140, 31 N. E. 1008; Stokes v. Weston, 142 N. Y. 433, 37 N. E. 515; Hersee v. Simpson, 154 N. Y. 496, 48 N. E. 890; Baker v. McLeod’s Estate, 79 Wis. 534, 541-545, 48 N. W. 657; Burnham v. Burnham, 79 Wis. 557, 566, 567, 48 N. W. 661. These cases and many others-are cited and sufficiently commented upon in my opinion in the Moran Will Case, 118 Wis. 177, 96 N. W. 375-377.
On Eebruary 23, 1904, the mandate of the court was amended to the extent of allowing the taxable costs of both parties to be paid out of the estate.