113 Wis. 233 | Wis. | 1902
The first contention made by appellants is that by the sixth paragraph of the will a devise is made to the testator’s children, to take effect upon the death of their mother, absolutely and in fee simple, and that the prohibition against conveyance, being repugnant thereto, is wholly void; basing their contention upon Zillmer v. Landguth, 94 Wis. 607. If the premise were conceded, escape from the conclusion would not be easy; but that premise is controverted by the contention that the will evidently creates a trust in the executors, to continue during the unexpired part of the period limited by twenty-one years from the date of making the will, so that the interest of the remainder-men does not take effect until that time. If this be so, of course there is no repugnancy between the gift in trust and the provision that no alienation shall occur until its expiration. An examination of this paragraph in the light of the facts as to the condition of the estate, etc., seems to-lead with entire certainty to the conclusion that the scheme and purpose of the testator did involve the vesting of the property in trustees. The care exercised to nominate executors; to come into office only after the death of the widow, prior to which time substantially the whole estate, except realty, must have been distributed, and any further administration of the estate become unnecessary, is significant; but the duties imposed upon them are much more so. They are directed that after all taxes, costs, repairs, and expenses have been paid out of the income of the real estate, all such net income, rents, and profits shall be divided amongst the children. This di
In ’construing wills, courts are not required to find apt and technical words defining or creating the titles or rights conferred. They are to find the intention of the testator from, the will itself, and, that intent having been ascertained, are to adjudge such rights and titles in the beneficiaries as give' effect to it. Littlewood’s Will, 96 Wis. 608; In re Donges’s Estate, 103 Wis. 497; Davies v. Davies, 109 Wis. 129. The testator may not know, and need not in terms declare, whether the estate to be taken by any shall be a fee, a life-estate, or a trust; but, if he malees apparent the quality and. characteristics of the estate he intends to confer, the courts will give it a name and vitality, if not contrary to law. In the instant case the words giving the estate absolutely to the testator’s children immediately upon the death of their mother are followed, and therefore controlled (Littlewood’s Will, supra), by other words imposing duties with reference to the same property upon others, the performance of which requires that those others should for a limited period have certain rights of control and management. Such rights constitute an estate, and as they are to be exercised for the benefit not of the holders alone, but of others, also, they constitute an estate in trust. Such, therefore, must have been the will of the testator. That such an intent will he inferred from the obvious purpose of the testator, as evinced by the acts directed in the will, is fully sustained by the authorities-cited by respondent. Scott v. West, 63 Wis. 529; Ford v.
Appellants further contend, however, that this intermediate estate in trust is rendered void by the further provision in the will which regulates and controls it, to the effect that none of the real estate shall be conveyed until the expiration of twenty-one years from the date of the will, which is attacked as an unlawful suspension of alienation, in disobedience of sec. 2039, Stats. 1898. That statute, as it existed at the time of testator’s death, prohibited suspension of power of alienation “for a longer period than during the continuance of two lives in being at the creation of the estate and twenty-one years thereafter.” De Wolf v. Lawson, 61 Wis. 469, 416, is cited, where it was held that suspension for any definite term not measured by, or dependent upon, continuance of a life or lives, was prohibited. But that case was decided under a different state of the law, before the above italicized words had been added by ch. 551, Laws of 1887. Under the law as it then existed, and as adopted from New Tork, the decision was unavoidable; for twenty-one years or one year might be longer than any two lives in being at the creation of the estateboth lives might terminate within a day. Under the present statute, however’, no term not exceeding twenty-one years is prohibited. To say that twenty-one years can be a longer period than the
Appellants’ insistence that the validity of the will must be tested by the law in force at the time of its execution is without merit. A will is ambulatory during the life of its maker. It is, in effect, reiterated as his testament at each moment of his life after its execution, including the last moment, and is governed by the law existing at the time when it takes effect, upon the testator’s death. Dodge v. Williams, 46 Wis. 70, 106; De Peyster v. Clendining, 8 Paige, 295.
A construction given by the judgment to the seventh paragraph of the will is not made subject of complaint by appellants, and therefore not considered. .
By the Court. — Judgment affirmed.