103 Wis. 497 | Wis. | 1899
Sec. 2286, R. S. 1818, is, by its terms, to take effect and confer upon an after-born child the share which he would have had in the event of intestacy when the parent, by his will, makes no provision for such child, unless it is also apparent by the will that he intended to make no provision for him. The first question is, therefore, whether or not provision is made for the two respondents, both born after the making of their father’s will, at which time he had no children.
The comprehensive and all-dominating rule in construing walls is that the intention of the testator must be ascertained from the words thereof, in the light of all surrounding circumstances, and that intention be given effect. To accomplish this, multitudinous minor rules have been announced, more or less technical, which, however, serve not so much to restrict or constrain the judicial mind as simply to guide
The will before us contains this language: “ I give and bequeath to my wife, Clara Donges, all the real estate of which I may die seised; to have and to hold the same until the youngest of my children, if any be born to me, shall attain the age of twenty-one years. In case there are no children living at the time of my decease, my said wife shall be the sole owner of my real estate.” The question arises at once, What was the intention of the testator as to his real estate if children were born to him and living at the time of
Peat v. Powell: Gift was in trust for son till he attained twenty-one, and then trust should cease. The words, “ and then to my son and his heirs,” were interpolated by implication. Hale v. Beck: Gift in trust to pay interest to the plaintiff, an infant, until she came loathe age of twenty-one years. Court implied a bequest to plaintiff absolutely after twenty-one. Atkinson v Paice: The bequest was “ in trust to J. F. L. till he comes of age.” Held, that absolute bequest after majority would be implied. Goodright v. Hoskins: Bequest to son Richard until his son Thomas attained the age of twenty-one years, and no longer; but, in case said Thomas die in minority, then remainder to others. Held an implication of a bequest to Thomas upon his attaining majority. Gardiner v. Stevens: Property bequeathed in trust for A. and B. till B. is twenty-five years old. In case of death of A. and B. before that time, then over to others. Court held an implication raised that A. and B. should take the remainder when B. attained the age of twenty-five years. Ex jparte Bogers: Bequest in trust for married niece A., to
A careful reading of the whole will leads us irresistibly to the conclusion that the testator had in mind the intention
The question next arises whether this devise to his two children of all of his real estate upon the arrival of the yougest at the age of twenty-one years is a “ provision ” for these after-born children, within the meaning of the statute. It is said this is not a present available provision for their support and maintenance from the time of his death, and it is perhaps contingent to the extent that it may be defeated by the death of both of said children before the youngest shall attain the age of twenty-one years.. The authorities, on this subject are not without conflict. In some states a bequest has been held not a provision within the meaning of the statute, because running only to a class, of which the after-born child became one; and in others it is held that the provision required by the statute must be an adequate or available one, and not postponed or reversionary; while in
The second position, namely, that a mere contingent or future bequest or devise does not constitute a “provision,” within the meaning of the statute, is much urged by the respondents, and is supported by the citation of many of the authorities above mentioned, as to which it may be noted generally that most of them are rested on both grounds; and it is difficult to discover that the courts would have held the provisions insufficient merely on the ground that the bequests were postponed or contingent.
In Hollingsworth’s Appeal, 51 Pa. St. 521, however, the insufficiency of the donation was undoubtedly the sole ground of holding the statute not satisfied. In that case all the estate was given absolutely to the wife of the testator, who-
The case of Bowen v. Howie, 137 Mass. 534, is strongly pressed by respondents, and is quite uniformly cited as sustaining both of the foregoing propositions. There the testator, after making bequests to his wife and living children, left the sum of $50,000 in trust, income to his wife during
In Rhodes v. Weldy, 46 Ohio St. 234, an after-born child was held not provided for by devise to the widow of all real estate for her life, and after her death to the heirs of her body begotten, and, in the event of her death without issue, over to collateral kindred. . The grounds of the decision were complex, and involved the consideration that the child could have the benefit only by the accident of
In Michigan, where we find our statute in exact words, in Stebbins v. Stebbins, 94 Mich. 304, construing a statute corresponding to our sec. 2287, the court held that a mere donation to the issue of a deceased child of a family Bible and a privilege to select certain ornaments and clothing as mementos was not intended as a provision, and, it appearing as a fact that the omission to make other provision for her was by accident and unintentional, enforced the statute in her favor. The court said: “It would undoubtedly be true that she would be concluded by the terms of the will itself if the testator had made some provision for her of a substantial character, however insignificant it might be in amount, but which showed that he intended it as a provision, and not as a keepsake merely.” In Forbes v. Darling, 94 Mich. 621, a bequest of all property to the widow, with binding directions to provide for the maintenance and education of children during minority, was held to be a provision for them; although the court also held that the degree and quality of maintenance and education furnished could not be inquired into.
In Illinois the statute is, in general policy, like ours, reserving the testator’s power to disinherit if he so intends, but providing against unintentional omission. In Osborn v. Jefferson Nat. Bank, 116 Ill. 130, the court construed a will devising all property to the testatrix’s husband if he survived her, and
Other authorities bearing not so directly on the subject are Rhoton v. Blevin, 99 Cal. 645; Hockensmith v. Slusher, 26 Mo. 231; McCourtney v. Mathes, 41 Mo. 533.
In Wisconsin the question has never been decided. It was raised in the case of Verrinder v. Winter, 98 Wis. 287, but expressly left unanswered. The same word used in sec. 2171, R. S. 1878, which puts a widow to her election in case any provision is made for her, has been construed more than once (Van Steenwyck v. Washburn, 59 Wis. 483; Turner v. Scheiber, 89 Wis. 1; Melms v. Pabst B. Co. 93 Wis. 140), the general result of which is to give the word an exact literal meaning,' and to hold that the giving to the widow anything in form is a “ provision,” within that statute, whether it be hers in possession, or whether it be valuable. Thus, in Van Steenwyck v. Washburn, supra, nothing whatever was given the widow, but estate placed in the hands of trustees with direction to expend whatever might be necessary to provide
Considering our own statute untrammeled by the variant decisions of other courts, it must be borne in mind that the legislative purpose was not to restrict the parent, nor to dictate to him what provision he should make. It was not to control his intention, but to provide for after-born children in the not improbable event of forgetfulness or oversight of the parent, upon the very presumption, indeed, that if he had thought of them he would have intended that they should have some share in his estate, and that share the law would then fix. The power of the testator to decide whether anything, and if so how much and in what form, should be given to after-born children, is as uncontrolled as if there were no statute on the subject. And if it be apparent that he was not forgetful,— that he had the after-born 'child in mind, and satisfied the statute by making for it some provision,— we do not conceive it the purpose of the statute nor the province of the court to say that such will shall not govern, but that he not only must make some provision, as the statute requires, but must make provision adequate in the opinion of the court, or provision in any particular form. Such holding seems to us to import into the statute words and purpose not necessarily there, and would infringe upon the freedom of will in disposing of property and regulating estates. It is not apparent why it should not be as much in the power of the testator to place a child, born after the making of his will, in a state of dependency on the mother, as it confessedly is to do so with the child in existence when
An analysis of all the .authorities cited to us, or which have come under our notice, leaves without support the contention that, under a statute like ours, whose purpose is, not to constrain but only to supplement a testator’s intention, the provision required to prevent intestacy as to an after-born child must be of a quality or value to satisfy a court’s sense of justice, except in Ohio, and that support is ambiguous at the best. On the other hand, the courts of Michigan, Illinois, 'and Massachusetts clearly, and Missouri, Kentucky, and California apparently, sustain the other rule that any provision, intended as such, however slight, will be respected and enforced as the complete will of the testator. That view also is in accord with the tendency of our own deeis-ions as to the provision which will be effective to cut off a widow’s dower, and we think is supported by the better reason. ~We accordingly hold that the devise made by this will of a remainder in the real estate to the respondents upon the majority of the youngest constitutes a “ provision ” for them, within the terms of sec. 2286, and that the estate should be assigned and distributed according to the terms of the will, subject to such modification as results from the widow’s election to take by law, and not under the will.
Independently of our view as to the sufficiency of this devise, still, we having decided that a devise is made, the same conclusion must be reached upon the same reasoning applied in Verrmder v. Winter, namely, that it appears from the will that such, and no other, donation was intended, and, if that is not a provision, none was intended.
As to the first of these, the right and liability of litigants to costs, and the amount thereof, is wholly statutory. In re Carroll's Will, 53 Wis. 228; Mulberger v. Beurhaus, 102 Wis. 1. For the court to allow or apportion costs, it is necessary to point to the specific provision of statute giving authority. As to costs fn this court, the allowance of them, in cases for the probate or construction of wills, otherwise than in ordinary litigation, finds inception in the laókmcm Will Case, 26 Wis. 364, a contested will case. It was there pointed out that sec. 3.6, ch. 264, Laws of 1860, now substantially embodied in sec. 2949, Stats. 1898, did not expressly allow any variation from the allowance of costs to the successful party and against the unsuccessful. But it was construed as intending to leave to this court a discretion broad enough to apportion those costs in such a case as there under consideration. And while that view, in the light of the general proposition above announced, savored somewhat of laxity, yet it has never been departed from, and has never received disapproval from the legislature, notwithstanding the two revisions since, and we think has become a settled construction of sec. 2949, and that, as a result thereof, in such cases as there and now presented, a discretion rests, under the statute, with this court, to allow or withhold costs, or to authorize their payment out of the estate, which amounts to the same thing as allowing them against the executor, and
With reference to the circuit court, the costs must be governed by sec. 2%18, which vests discretion in that court as to who shall recover costs, and as to whether the recovery shall be of the whole or only part of (but not more than) those taxable under the fee bill (In re Carroll’s Will, supra); which discretion, however, is controlled in some measure by sec. 2932, requiring that any costs taxed against the executor shall be collected out of the estate unless the court shall direct them to be paid by him personally for mismanagement or bad faith.
In the county court taxable costs are controlled by sec. 4041, in applying which the county court is in some measure restrained by sec. 2932, which applies to all courts. Mulberger v. Beurhaus, 102 Wis. 1. The discretion thus vested in the circuit and county courts under the statutes above mentioned we shall not attempt to direct in advance, though it might be' subject to review if abused.
The question of allowance out of the estate, or from one party to another, of expenses not taxable by statute, such-as general counsel fees and the like, is a very different one. The allowance of such expenses at all out of an estate first appears to have been considered by this court in the case of
The general subject was recently discussed in Mulberger v. Beurhaus, 102 Wis. 1, where it was said, in a litigation as to a trust estate: “ There is no statute authorizing such a proceeding, and no precedent for it in this court. It is considered that counsel fees to others than the trustee who may be interested in the trust fund are not recoverable, either from the trustee personally or out of such fund. That was the rule in chancery before the Code, and there is no statute changing it, nor any precedent varying the old practice.” Exception was there made for the one case, not there presented, of the construction of a will, embarrassed by the precedents above referred to, but which, except for such precedents, is governed by the same reasons, and should be subject to the same rules, as the proceeding presented in the Mulberger Case.
The confusion of counsel fee allowances with costs is not peculiar to Wisconsin, but appears in many states. Probably it results from the practice of the English court of chancery to allow such an item sometimes as part of the costs, under the designation of “ costs taxed as between solicitor and client; ” but even there such item was really distinct in kind from the regular fee bill, and was allowed, only in extreme cases, by virtue of Stat. 17 Bich. II. ch. 6, authorizing the chancellor to “ allow damages according to his discre
Since, then, such allowances are not supported by any statute, how can they be justified? No good reason is apparent why the expenses of a litigant as to his ownership of property should receive the attention of the court or be paid by another when the litigation takes the form of construing a will, any more than if the same issue were tried in ejectment or replevin; but no one would contend that in the latter case any power to make such order existed in the court. Where parties are sui juris, and each litigating for the promotion of his own- interests, each should bear the expense, as he will enjoy the fruits of his own contention; and the existence of a fund over which the court has control in no degree varies the principle involved or justifies infraction thereof. On mature consideration we are convinced that. the habit of ordering payment of counsel fees, other than the executor’s, is without authority of law and should not longer be indulged in, but that the cases and extent in which one party or any fund shall be required to contribute to the expenses of another in litigation must be limited by the costs statutes.
It will, of course, be understood that what we have said with reference to allowance of counsel fees, etc., has no application whatever to those reasonably incurred by an executor or any other trustee in the good-faith performance of his duties. No rule is better settled than that the trustee is entitled to pay those, as all other proper expenses which fall on him i>y reason of his trust, out of the trust funds in his
By. the Court.— Judgment reversed, and cause remanded to the county court with directions to enter judgment in accordance with this opinion upon respondents’ petition. Taxable costs of both parties in this court will be paid out of the estate.