148 Wis. 301 | Wis. | 1912
The appeals in this action present two main questions for determination: (1) The character of the estate devised and bequeathed to the children by paragraph II of the will; and (2) "What effect shall be given to paragraph Y of the will, which undertakes to appoint a general guardian of the person and estate of the.children of the testatrix during their minority.
The court below, upon the facts which are undisputed, concluded that it was the intention of the testatrix as disclosed by her will to create a life estate in her children with remainder over to their issue, if any; and in the event of the death of her children without issue, then to others specified in the first conclusion of law set forth in the statement of facts; that in and by the terms of the will a valid trust was created for and during the life of the children of the testatrix, Harold 0. and Mabel Tenie Frohbach, and the survivor thereof.
On the part of the defendant Hugo 0. Frohbach it is contended that by the terms of the will, coupled with the surrounding circumstances, it is clear that no trust was created, but that the property passed unhampered to the children during their lives, with power to consume the same as they might deem necessary, hence that they had absolute power to convey a fee title, and were vested with the possession and control of the property; while on the part of the plaintiffs it is argued that' a trust was created.
Roth parties rely upon the same facts to support their respective contentions. It is also conceded by all parties that the intention of the testatrix as gathered from the four cor
The language of the will under consideration is clear and unambiguous. After some minor bequests the testatrix gave all the rest and residue of her property, real and personal, in possession or expectancy, to her son and daughter or to the survivor of them, share and share alike, during their natural lives and during the life of the survivor of them, with, the right to use and consume such part of his or her share as either of them shall find necessary. There would seem to be no room for construction on this language. The children take a life estate with the right to use and consume such part as either shall find necessary. There is no intimation of any trust in the language used, and none- can be inferred from the will when read in the light of surrounding circumstances. The surrounding circumstances rather repel than support any
The ease of Bamforth v. Bamforth, 123 Mass. 280, approved by this court in Larsen v. Johnson, 78 Wis. 300, 47 N. W. 615, as regards the real estate devised is strongly in point. In that case the will provided: “I give and bequeath to my parents, Samuel and Betty Bamforth, the use and improvement of all my estate, both real and personal, of which I may be possessed at the time of my decease, and so much of the estate itself as may be necessary for their comfortable support so long as either of them shall live,” with remainders over to other relatives. The court in its opinion said:
“The legal effect of the testator’s disposition of his real estate is as follows: He first gives his parents an estate for life. He also gives them ‘so much of the estate itself as may be necessary for their comfortable support so long as either of them shall live,’ thereby giving them a power to dispose of so much of the fee as may be necessary for that purpose; and whether their determination upon such question of necessity is or is not conclusive, no trust is created in them or in the executor.”
In Larsen v. Johnson, supra, Larsen died leaving a widow and no children, and leaving land in Racine county which
“If the widow had the power to dispose of the corpus or fee of the estate, on the condition or contingency of its necessity for her support and comfort, and the evidence shows that such a contingency arose, then the title of the respondent is perfect.”
The respondent claimed under conveyance from the widow. It will be noted that in Larsen v. Johnson, supra, the power to dispose was given “if it shall be necessary for her support and comfort in this life,” while in the instant case, after giving a life estate, the will further gives the right “to use and consume such part of his or her- share as- either of them shall find necessary.” In Auer v. Brown, 121 Wis. 115, 98 N. W. 966, the testator devised all of his property to his wife for her life, with full power and authority to sell and transfer the same if she desired to do so'; also to convert any of the real estate into personal property, and to use any or all of such estate as she may desire. The will also contained a residuary clause. This court held that under sec. .2108, Stats. (1898), the estate of the life tenant under the power before referred to was a fee, so that her deed conveyed a fee, and that the power of disposition conferred upon the donee was absolute under sec. 2112, and unaccompanied by any trust. We think in the instant case the children were vested with a life estate
Tbe right to use and consume, declared in tbe will, clearly gives the right to use tbe corpus of tbe estate devised and bequeathed, and therefore tbe power to sell the personal property absolutely and convey tbe fee in tbe real estate necessarily follows. Perkinson v. Clarke, 135 Wis. 584, 116 N. W. 229; Murray v. Kluck, 87 Wis. 566, 59 N. W. 137; Larsen v. Johnson, 78 Wis. 300, 47 N. W. 615; Johnson v. Battelle, 125 Mass. 453; Leggett v. Firth, 132 N. Y. 7, 29 N. E. 950; Allen v. Hirlinger, 219 Pa. St. 56, 67 Atl. 907; 31 Oyc. 1044-1048 and cases cited.
And where “it can be gathered from tbe will that the testator intended that tbe legatee for life should enjoy tbe property in its then condition, the bequest is specific, and the legatee is entitled to tbe possession and enjoyment of the property thus specifically bequeathed, although tbe bequest be made in general terms and without any particular designation of the property.” Golder v. Littlejohn, 30 Wis. 344; Pierce v. Stidworthy, 81 Me. 50, 16 Atl. 333; In re Garrity’s Estate, 108 Cal. 463, 38 Pac. 628, 41 Pac. 485; Scott v. Scott; 137 Iowa, 239, 114 N. W. 881; Park’s Adm’r v. American H. M. Soc. 62 Vt. 19, 20 Atl. 107; Harris v. Knapp, 38 Mass. (21 Pick.) 412; Dodge v. Moore, 100 Mass. 335.
Counsel for respondent appear to rely strongly upon Allen v. Boomer, 82 Wis. 364, 52 N. W. 426. But it will be seen
Upon this branch of the case we conclude -that the will of Laura A. Frohbaeh gives to her children, Harold 0. and Mabel Tenie Frdhbach, each a life estate in one half of the residuary estate.of the testatrix, with the power-to sell, use, and consume such portion as either shall find necessary; and that said children of the testatrix have the right to the possession and control of the property, subject to management during their minority by a guardian or trustee'as more definitely specified hereinafter in treating plaintiff s’, appeal.
Some point is made by counsel as to the rights of remain-dermen, and while it seems to be conceded that there is no controversy as to their rights, it is said that the findings and judgment of the circuit court do not clearly state such rights. It is true that the findings and judgment are quite general as to the rights in remainder, but since there is no controversy upon the subject we cannot see that more detailed specification, is necessary.
Plaintiffs appeal from that part of the judgment which ad
The court below adjudged that by the terms-of the will there was no valid appointment of a testamentary guardian for the minors. It does not seem necessary to discuss or decide the question whether a married woman has the right to appoint a testamentary guardian over the person of her children.
Whether the absconding of the father, or the award of the custody of the children by the judgment of divorce to the
By the Court. — The judgment so far as in conflict with the foregoing is reversed on both appeals, and the cause is remanded with directions to the court below to correct and reenter the judgment in accordance with this opinion.