116 Wis. 294 | Wis. | 1903
1. The principal error assigned upon the appeal of the executor is the holding by the circuit court that-the sale of the homestead commanded by the second codicil was not to be performed by the executor in his official capacity as such, but by some trustee to be appointed by a court of equity; in accordance with which holding, Mr. Lawrence,. who was in fact executor, was appointed such trustee, and' was directed to pay the net proceeds to Edward B., Benjamin O. and Florence M. Barber, the trustees named in the fifth paragraph of the will, for immediate distribution, one-twelfth to the trustee of the grandchildren and eleven thirty-sixths to each of the three children. In this respect we are persuaded the circuit court erred. The authorities are numerous, ancl practically unanimous, that, where the sale of real estate is commanded by a will, obviously as a part of the settlement of
Tbe further direction of this portion of the judgment that the proceeds of the homestead be paid over by the trustee making the sale to the three trustees named in the fifth para;graph of the will, to be by them at once divided, and paid over to the respective legatees, perhaps resulted from the error of the circuit court already pointed out, whereby he concluded that the sale was to be made outside of the ordinary administration of the estate, and by a specially appointed trustee, whence be conceived it necessary that the proceeds should •come back into the estate in some way, and adopted this direction as a method of accomplishing that result. As already •shown, this sale should be made by the executor in and as a
2. The next question which is raised by assignment of ■error upon the appeal of the three children of the testator is whether the bequest contained in the second codicil, to the two grandchildren, of an undivided one-twelfth interest “in all my estate, real, personal, and mixed,” extends to the household effects and homestead. The appellants alleging this error ■contend that it is apparent from the character of the property •and from the general scheme of the codicil that the testator ■did not intend to give to these grandchildren an interest in •anything except the residuum of the estate devised and bequeathed to trustees for realizing and distribution by the fifth paragraph of the will. While conceding that there are ■some circumstances which tend with more or less cogency to
3. The next in natural sequence is the principal assignment of error and ground of appeal, assigned by the guardian ad litem, of the two grandchildren, — for that the court held that there was'no intestacy with reference to the portion of the estate which by the will had been given to ITarry C. Barber, and by a revocation contained in the second codicil was prevented from passing, under the statute (sec. 2289, Stats. 1898), to his issue, and that by clear and necessary implication this portion of the estate, after deducting the one-twelftli by that codicil bequeathed to the grandchildren, was bequeathed to the three surviving children of the testator, the contention of these appellants being that the result of the revocation of the bequest to Harry C. left his one-fourth of the homestead and thirty-three one hundred forty-fourths of the other property intestate, except that one-twelfth of each of said shares was specifically devised by the codicil; that, as a result, the said minors, as heirs at law of the testator, were entitled to inherit one-fourth of these fractions, towit, one twenty-fourth of the proceeds of the homestead, and a slightly less fraction of the residuum of the estate devised by the fifth paragraph of the will to the trustees for collection and distribution. The preliminary and difficult question is, however, whether there is intestacy as to any part of the
“It is only admitted as a means of carrying out what the testator appears on the whole to have really meant, but failed somehow to express as distinctly as he should have done. In other words, a gift by implication must be founded upon some expressions in the will from which such intention can be inferred. It cannot be inferred from an absolute silence*307 on tbe subject. . . . Tbe court cannot reform tbe will by changing its language, or add provisions not written therein. It can only construe tbe instrument as written.”
Tbe problem before us, therefore, is whether we can find in tbe words used by tbe testator, in either will or codicil, or •all combined, an attempt to declare a gift to any one of tbe one-quarter of bis estate which was given to Harry C. by tbe will as originally drawn. While, as we have already said, the clearest intention of tbe testator against intestacy or against tbe right of an heir at law to inherit any of tbe property is inconclusive, it is by no means without weight in interpreting and construing the language used. It is one of those •attendant circumstances which serve to aid the court in understanding what was attempted to be expressed by the language used. The court may avail itself of that and the other circumstance to put itself as nearly as possible in the situation of the testator at the time when the words of the will were written (Brittingham & H. L. Co. v. Manson, 108 Wis. 221, 84 N. W. 183), to re-establish the light and atmosphere in which was painted the “picture of the mind” of the testator, as a will is sometimes called, so that it may appear to the reader as it did to the writer. We have already said that we think it very apparent that the testator did not wish nor intend to leave any of his property intestate, nor any to descend absolutely to his grandchildren. The whole scheme •of the will and codicils shows this; but especially convincing is the declaration of the codicil that testator does not purpose that any part of his estate shall pass to or under the control of the mother of these grandchildren, directly or indirectly. That purpose will be thwarted if anything passes to them as intestate property, especially if either of them should die unmarried and intestate, so that the mother would take as heir of her child. Again, the provision for reversion to the estate of the share of either grandchild upon death •during minority, for distribution according to will and codi-
In the will before us, with its codicils, we certainly find more to indicate that testator at least supjDosed that he had used words declaring full disposal of all his property than in any of the cases cited in support of the conclusion of partial intestacy, and we should do wrong to blindly follow those precedents, if we can read out of those words the meaning which the testator attempted, to write into them. One highly significant paragraph of the codicil is the direction that “immediately after my death my said homestead shall be sold, and' the proceeds thereof disposed of according to the terms of my last will and the provisions of my said first and second codi-
4. The guardian ad litem, of the grandchildren also assails as erroneous that construction of the will and codicils which holds that the share of the grandchildren in the residuum of the estate is controlled by the fifth paragraph of the original will, vesting all such property in trustees, to care for and dispose of the same, and to pay over to the beneficiaries the proceeds of such management and disposal. Instead thereof he contends .that the codicil gives absolutely one-twelfth to the grandchildren, so that they take legal title to such share of each specific parcel of real estate at least, and not a mere beneficial interest in the proceeds. The policy and intent of the testator to vest the legal title to all this property in adult persons presumably familiar therewith, in order to facilitate its speedy sale and reduction to money, and avoid the delays and obstacles resulting from the necessity of consulting all the beneficiaries as to sale of each parcel and from the legal steps necessary to effect transfer of minor’s interests, seems to us entirely plain. Such purpose would be thwarted by the construction suggested by the guardian ad litem. The trustees could make sale of only undivided eleven-twelfths without consent of those representing the grandchildren’s interest. This, obviously, if it did not prevent sales, would impair the probability of obtaining full price for the fractional interest under the trustees’ control. We find it impossible to believe in an intent to thus thwart and embarrass so well digested and so important a general plan as that set forth by the fifth paragraph of the original will, nor do we think the provisions of the codicil necessarily inconsistent therewith. The share of the father of these appellants, which might have passed to them but for the revocation, was merely a beneficial interest in the proceeds of the trustees’ management, and the
Several suggestions are made by the guardian ad litem for certain modifications of the details of administration of this property, but they are all either so obviously perversive of the directions of the testator, or so entirely within the sound discretion of the trial court, that their discussion here may be dispensed with. Our conclusion is that the judgment of the circuit court is correct in all respects except with reference to the manner of sale of the homestead and disposition of the proceeds thereof.
By the Court. — The judgment of the circuit court is modified so as to declare it the duty of the executor, in his official capacity as such, to immediately sell the homestead of the deceased, and to pay the net proceeds thereof one-twelfth to such person as shall be appointed trustee for Charles M. and Ruth E. Barber, and eleven thirty-sixths thereof to each of testator’s three children Edward B., Benjamin C., and Florence M. Barber; and, as so modified, the judgment is affirmed. The taxable costs of the several parties in this court will be paid out of the estate.