129 Wis. 534 | Wis. | 1906
Under tbe provisions of tbe will it is unquestioned that tbe executors took tbe residue of tbe estate for tbe purpose of applying tbe net income thereof, if necessary, to tbe care and maintenance, during bis life, of testator’s son William, and of bis family, if be bad any. In their administration of tbe trust, for tbe purposes and in tbe manner set out in tbe statement of facts, they mortgaged tbe real estate for $15,000 to pay in part for tbe improvements made-on it. Tbe inquiry is whether tbe executors bad power so to mortgage tbe real estate under tbe powers conferred by tbe will. Tbe chief difficulty arises in determining whether tbe power to make disposition of tbe real estate, given in tbe will, included tbe power to mortgage it for tbe purposes of administering tbe trust witb respect to tbe care and maintenance of tbe son William. Tbe decisions on tbe subject of
In the construction of powers conferred for such objects we again find the decisions upon the subject irreconcilable. Some of the courts have adopted the strict construction, and hold that no power to mortgage is implied by the language granting power to sell, convey, and dispose of the real estate, for the reason that such terms negative an intent of the donor to authorize mortgaging the estate. Of this class are the following cases: Bloomer v. Waldron, 3 Hill, 361; Potter v. Hodgman, 81 App. Div. 233; Price v. Courtney, 87 Mo. 387; Parkhurst v. Trumbull, 130 Mich. 408, 90 N. W. 25; Greene v. Greene, 19 R. I. 619, 35 Atl. 1042. Other courts .adopt a liberal interpretation of such terms when employed in granting such powers, and have construed them as expressly including the authority to mortgage. This rule is followed in Pennsylvania and other jurisdictions. Zane v. Kennedy, 73 Pa. St. 182; McCreary v. Bomberger, 151 Pa. St. 323, 24 Atl. 1066; Jackson v. Everett, 3 Tenn. Cas. 811; Steifel v. Clark, 9 Baxt. 466; Rutherford L. & I. Co. v. Sanntrock, 60 N. J. Eq. 471, 46 Atl. 648; Mills v. Banks, 3 P. Wms. 1; Ball v. Harris, 4 Myl. & C. 264; 4 Kent, Comm. 345.
Tbe will clearly declares tbe object of tbe trust conferred on tbe executors. They were to employ tbe residue of tbe estate transferred to them so that bis son William should be-cared for and maintained in tbe manner in which be bad theretofore received “all necessary care, assistance, and comforts,” and tbe cost thereof was to .be defrayed out of tbe net income of tbe estate. To accomplish tbis purpose tbe executors were vested with tbe residue of tbe estate, after a bequest of $20,000 out of tbe personal estate to bis son Phillip,
“to bold, manage, invest, and reinvest tbe same, collect tbe rents, profits, and income arising therefrom; to make all necessary repairs, and pay tbe taxes, assessments, and insurance thereon; to lease, sell, deliver, transfer, grant, and convey the-whole or any part thereof; to invest and reinvest tbe proceeds, of sale, and generally to have, manage, and control my said estate as fully as I might, if living, do myself.”
In its terms and phraseology tbis language is significant,, showing that tbe testator intended to confer on tbe executors all necessary authority under tbe power to manage tbe property throughout William’s life so as to provide for him as tbe testator bad done in bis lifetime. It is evident that be in
We should look to all parts 'of the will to ascertain the testator’s intention. Taking this view of the will, we think the language, “generally to have, manage, and control my said estate as fully as I might, if living, do myself,” is an expression of testator’s intention to confer broad and comprehensive powers for the purposes of this trust, and that such language should be construed as having a significance inclusive of every meaning in which the words may be used, instead of a restricted one. It appears that the real estate held in trust yielded no income above the necessary expenses of repairs, taxes, and insurance. After it was improved, as shown, it yielded a net income sufficient to furnish the son William the care and maintenance directed and the executors were thus enabled to accomplish the purposes of the trust. In the light of these facts it seems obvious that the provisions of the will were complied with by the executors in making the improvements and that their administration was in harmony with testator’s intention that the powers granted them should
It is suggested that tbe court erred in directing that tbe ■delinquent taxes be paid out of tbe money so to be raised in tbis proceeding, because tbe law imposes tbe duty of paying them on tbe lif'e tenant. Notwithstanding such duty of tbe life tenant, tbe court may very properly direct redemption from a sale for delinquent taxes to prevent tbe issuance of tax deeds, thereby protecting tbe infant’s estate. A delay of redemption until payment could be enforced against tbe life tenant might seriously imperil tbe infant’s interests.
It is urged that tbe executors exceeded their trust in •applying more than tbe net income to William’s support. Whether or not there is a basis for such a claim is immaterial in tbis proceeding. Tbe executors bad power under the will to make tbe $15,000 mortgage, and it was proper for the court to ^order a new loan to provide for its payment to protect tbe infant’s estate from loss as threatened if it were not paid.
We discover no error in tbe record, and find that tbe order ■of tbe circuit court was well founded.
By the Court. — Tbe order appealed from is affirmed.