Jones v. Jones, 66 Wis. 310

Jones v. Jones

66 Wis. 310 | Wis. | 1886

LyoN, J.

It was said by Chief Justice Marshall in Smith v. Bell, 6 Pet. 68, that “ the first and great rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator expressed in the will shall prevail, provided it be consistent with the rules of law.” This rule has been asserted in a variety of forms, and enforced in all courts of this country and England whose decisions are authoritative, and it has never been shaken by adverse rulings.

The case of Knox v. Knox, 59 Wis. 172, affords an apt illustration of the application of the rule. The will to which construction was given in that case contained this clause: “ I give, devise, and bequeath unto my wife, M., her heirs and assigns, forever, all my real and personal estate, . . . having full confidence in my said wife; and hereby reqxiest that, at her death, she will divide equally . . . between my sons and daughters [naming them] all the proceeds of my said property, real and personal, . . . hereby bequeathed.” It was held that the precatory words in the will raised a trust in favor of the testator’s children, although none was expressed, and although the devise was to the wife, her heirs and assigns, forever; and that the widow took a life estate in the property; coupled with a trust as to the remainder in favor of the children.

So, in this case, we have but two questions for determination: (1) What intention has the testator expressed in his will in respect to the disposition of his estate ? and, (2) His intention being ascertained, is there any existing rule of law which will prevent the court from carrying it out.

1. The disposition which the testator intended to make of his property is made perfectly clear by the terms of his *316will. First, be gave all bis property to bis wife. That is tbe signification, of the words “ all that is in my possession,” employed in the instrument. Then be gave “ tbe property ” to his children, necessarily meaning tbe same property mentioned in tbe devise and bequest to bis wife, to be “ parted to ”— that is to say, divided between — them, in equal shares, after the death of bis wife. Tbe provision for bis wife contains no words of inheritance, and it is obvious that bis children, equally with her, were tbe objects of bis care and bounty. In view of tbe fact that be employed no language from which an intention to bestow more than a life estate upon his wife can be inferred, the provision which he made for his children shows very clearly that be intended to give her only a life estate.

2. Is there any rule of law which will prevent tbe court from carrying out and executing the expressed intentions of the testator in respect to tbe disposition of bis property ? Counsel for tbe appellant, who is deservedly eminent for great learning in this branch of the law, maintains that tbe power of sale contained in the will — “ and also my wife have right to sell the estate, if that will be her choice ”— authorizes tbe appellant to dispose of tbe whole estate of tbe testator, absolutely, for her own exclusive benefit. That is to say, counsel maintains that tbe power is general and beneficial, and, the same being unaccompanied by any trust, tbe life estate of tbe appellant, tbe grantee of the power, is changed as to creditors and purchasers into an absolute fee, subject to the future estate of tbe testator’s children only in case tbe appellant die without executing the power and the property has not been sold for the satisfaction of her debts. R. S. ch. 97, secs. 2104-2112. lie argues from these premises that the estate or interest of tbe children of the testator under the will is, at most, a contingent remainder.

We do not stop to inquire whether this conclusion is prop*317erly deducible from the premises, or what would be the effect upon, the parties of such a construction of the will, for the reason we do not think the premises are sound. The power of sale may be beneficial, but we are of the opinion that it is not a general power. As already observed, the testator manifestly gave to his children remainder in fee in the same property in which he gave his widow a life estate. There is nothing in the will (aside from the power of sale) from which it can be inferred that he intended to authorize any sale of the corpus of his estate; and the language of the power itself does not necessarily raise such an inference. On the contrary, it is quite obvious that he intended his property to go to his children intact, on the determination of the life estate. Ye cannot believe that by the terms of his will the testator placed it in the power of his widow to sell the property absolutely, and thus put upon his children the risk of her losing the proceeds in unfortunate investments, or otherwise. There was nothing in the circumstances of the widow, or the situation of the estate, which called for any such power, and, as already remarked, nothing in the will which ought to be held as conferring it. Hence we agree with, the circuit court that the power of sale only authorizes the appellant to sell her life estate or interest in the property, leaving the property intact for the testator’s children when his widow shall decease.

These views take this case out of the rule of Campbell v. Beaumont, 91 N. Y. 464, and the cases therein cited, much relied upon by counsel for appellant, to the effect that when the property is to be spent by the primary legatee at his pleasure a further limitation is hostile to the nature and intention of the gift, and therefore void. This case is more nearly like that of Terry v. Wiggins, 47 N. Y. 512, in which the power of sale, general in terms, was held to be limited to the necessities of the devisee of a life estate, and a remainder over to a religious society was upheld. Smith v. *318Bell, 6 Pet. 68, above cited, is a very strong case in tbe same direction.

See note to this case in 28 N. W. Rep. 179. — Rep.

We are aware of no other principle of law which forbids a construction of this will as the testator made it. Were the famous rule in Shelley’s Case, 1 Coke, 219, in force in this state, it might defeat the provision for the children of the testator, who, it was admitted by counsel for both parties, are the children of the appellant, his widow, also.- We have here, therefore, in substance and legal effect, a devise and bequest to the widow of the testator for life, with remainder to the heirs of her body. That rule is that the words “heirs of her body” are words of limitation, and not of purchase, and the ancestor — the widow of the testator — takes the whole estate. But the rule in Shelley’s Case is not in force in this state. The opposite doctrine prevails here, and is contained in R. S. sec. 2052, which provides that in such a case the heirs of the body of tenant for life shall take as purchasers by virtue of the remainder limited to them. This saves the remainder, and effectuates the expressed intention of the testator.

The rules for the management and disposition of personal estate bequeathed for life, with remainder over, are laid down in Golder v. Littlejohn, 30 Wis. 344, and no repetition of them is here required.

By the Court.— The judgment of the circuit court is affirmed.