Ordway v. Gardner

107 Wis. 74 | Wis. | 1900

Winslow, J.

This is essentially an amicable action, but it involves a controversy which is none the less real and earnest, although there are no personal animosities existing between the parties. The trustee entertains one view of the meaning of the sixth clause of the will in question, and the cestui que trust and his mother entertain a different view; and the trustee, with commendable prudence, desires an authoritative decision of the question, not from a desire to prolong his term as trustee, but so that he may be assured that he has performed his whole duty.

The trustee rightly says in his brief: “ There is really no disputed question of fact between the parties. Substantially the only question for determination is as to whether the time has arrived when the trust can be lawfully closed.” Further, the trustee says: “ The trustee [for the purpose of obtaining a decision upon that point] was and is willing to admit that the said Charlie W. Gardner has reformed, and lived a moral and sober life for a continuous period of more than seven years nest prior to the commencement of the action.”

The contention of the trustee, in substance, is that the trust cannot be closed until the death of the life tenant; that the seven years of sober life may be accomplished during the lifetime of the life tenant, but that it was not intended that the trustee should convey the trust property to Charlie H. until the death of his mother, upon the happening of which event the trustee should at once convey to the ■cestui trust if living, and if, in the opinion of the trustee, seven continuous years of moral and sober life had then been accomplished.

On the other hand, the contention is that, when the seven years of moral and sober life are accomplished to the satisfaction of the trustee, the remainder becomes vested in Charlie H., and the trustee should convey it to him, subject, ■of course, to the life estate in the mother. The trial judge took the latter view of the question,- and we agree with his ■conclusion. The scheme of the fifth and sixth clauses of the will was evidently to give the mother a life tenancy in the whole residuum of the estate, with power of sale and consumption of the body of the estate in case of insufficiency ■of the usufruct for her comfortable support, and to give the remainder in equal shares to his three children. As to Henry D. and Mary L., their interests in remainder clearly vested at once upon the probate of the will, subject only to the rights of the life tenant. As to Charlie N., however, his prospective interest vested in the trustee, also subject to the life estate, and subject to the contingent ripening of the remainder in fee in Charlie N., and the consequent closing -of the trust by seven continuous years of moral and sober life on his part.

The sole question is, Was it the intention of the testator, as expressed, in his will, that this seven years could be accomplished and the trust closed during the life-time of the life tenant ? We think the plain language of the will necessitates an affirmative ans wer to the question. That language is as follows: “And if my son shall for seven years from and after my death, or at cmy one continuous period of time, lead a moral and sober life in the opinion'of my said trustee, then, and in that case,” the trustee is to pay and deliver, deed or convey, to him (the son) the remainder of such share or trust fund. There seems little, if any, room for construction in these words. “ Seven years from and after my death,. or at any one continuous period of timef standing alone, and without qualification, is certainly definite^language with no uncertain meaning. To inject into it another qualification, namely, the previous death of the life tenant, would be to add a contingency which the testator did not add, and which is not necessarily implied by any other clause in the will. The remainder having thus vested in Charles N. by the performance of the condition named in the will, the trust is closed, and it becomes the duty of the trustee to turn over the trust estate as directed in the will.

By the Court.— Judgment affirmed.