222 Wis. 1 | Wis. | 1936
The first contention made by the guardian ad litem is that the application for a construction of the will in the respects sought is premature. The trial court found that for several years last past the property has been operated at an annual loss; that the principal part of the property consists of a fifteen-apartment building which is in a run-down, dilapidated condition, in need of extensive repairs, and the earning capacity of the property is not sufficient to pay the running expenses and make needed improvements ; that tax liens are accumulating; that the trust property is in need of substantial financial aid; that under present conditions a satisfactory loan cannot be secured; that
The petitioners sought by the construction of the will to have determined, (1) the period or duration of the trust created by paragraph second of the will; (2) determination of the nature of the interest, if any, of the petitioners in and to trust res; and (3) rights of petitioners and their families in and to the income of said trust.
(1) The trial court held that the trust created by the second paragraph of the will terminated twenty-one years from the date of the death of Alphonso F. Stack, that is, twenty-one years from March 25, 1930, so that the trust endures until March 25, 1951.
Paragraph second of the will of Stephen Sylvester Stack contained the following provision:
“I give, bequeath and devise in trust to my two sons, Sylvester S. Stack and Earl L. Stack, and the First Wisconsin Trust Company of Milwaukee, Wisconsin, jointly, during the lives of my sons Earl L. Stack and Alphonso F. Stack and for twenty-one years thereafter, all my real estate,” etc.
Upon this proposition the first contention of the guardian ad litem is that it was adjudicated in the prior case. With this contention we cannot agree. The adjudication there was in the language of the will and there was no attempt to interpret the language. Therefore it stands, although reported .in the prior decision of the court, uninterpreted.
By paragraph eighth of the will it is provided:
“In case of the death of any of my said sons, the surviving trustee or trustees shall continue as the trustee or trustees of my estate.”
In so providing the testator obviously contemplates the possibility of the named trustee, Sylvester S. Stack, dying and Earl L. Stack continuing to act as trustee for the balance of the trust period. Earl could not do this if his death was a condition precedent to- the commencement of the last twenty-one years of the trust. Paragraph fourth contains the following provision:
“At the termination of the trust hereinbefore provided for, the real estate shall be divided equally among my sons.”
It appears that at the time the testator executed his will he was aware of the fact that his son Alphonso- was in an abnormal physical and mental condition, and during the period of his life would have.to be cared for, and this was the major reason for the creation of the trust. Alphonso died after the execution of the will, but predeceased the testator, at a time, however, when the testator was not able to revise his will. Considering the will as a whole, it is held that the trial court correctly construed -the will to- mean that the trust should terminate twenty-one years from the date of the death of either of the sons. Alphonso- having died on March 25, 1930, the trust therefore will terminate as the trial court held on March 25, 1951.
(2) The guardian ad litem contends that the determination of the trial court that the testator’s surviving sons, Earl
“At the termination of the trust hereinbefore provided for,' the real estate shall be divided equally among my sons; and the issue of any deceased son by representation, and if there should be no issue of any of my sons, in that case the said trust estate shall be divided equally among my heirs according to the law of descent in the state of Wisconsin;”—
that this paragraph directs a division of the property at the end of the trust period and does not create a vested remainder in the petitioners, citing Smith v. Smith (1903), 116 Wis. 570, 93 N. W. 452; Benner v. Mauer (1907), 133 Wis. 325, 113 N. W. 663.
By the terms of paragraph fourth it is provided that at the termination of the trust “the real estate shall be divided equally among my sons” and paragraph fifth provides that the residuary trust “shall be divided among my surviving sons.” Considering this language in connection with the circumstances which confronted the testator at the time of the execution of the will, it is considered that the trial court correctly held that each of the petitioners has a vested remainder in the trust estate, subject, however, to be divested by death prior to the termination of the trust. McMichael v. Peterman (1909), 140 Wis. 589, 123 N. W. 262; Will of Roth (1926), 191 Wis. 366, 210 N. W. 826; Brown v. Higgins (1923), 180 Wis. 253, 193 N. W. 84.
(3) The guardian ad litem quite properly does not contest the determination of the trial court that the income of the trust property during the entire period of the trust is to be devoted to the testator’s sons, Earl L. Stack and Sylvester S. Stack, to the exclusion of testator’s other remote relatives, with the exception that in the event of the death of either or both of said sons,-so much of said income as is
It is further held that the trial court correctly determined that Earl L. Stack and Sylvester S. Stack are the presumptive owners of the next eventual estate in the trust property. Sec. 230.40, Stats. Young v. Barker (1910), 141 App. Div. 801, 127 N. Y. Supp. 211; Matter of Harteau (1912), 204 N. Y. 292, 97 N. E. 726.
By the Court. — Judgment appealed from is affirmed.
