90 Wis. 236 | Wis. | 1895
1. The objections made by appellants in their brief against the construction placed upon the testator’s will by the county and circuit courts were not pressed in argument, but we have examined them, and arrive at the conclusion that they are not well taken. We do not think that it was intended to create any trust in the will in favor of -the testator’s daughter Barbara for the sum of $1,800, or for one sixth of the residue of the estate, but that, upon a fair construction, the word “ to ” is to be supplied after the word “ and,” in the third and fourth paragraphs of the will, so that she took under it a legacy for $1,800 and one sixth of the residue, free from any trust in Louis Schinz. If it can be said that any trust was intended, the will does not state its terms, and it would be but a mere naked, passive-trust, which would be valid as to personal estate, and as to real estate would be executed as a legal estate in her favor by force of the statute. Secs. 2071, 2075, R. S. In either
2. The judgment in respect to the bequests in trust for John Zentner does not deviate in the least from the plain and unmistakable language of the will, but recites it. John Zentr tier did not predecease the testator, and if' he shall leave, when his death occurs, any child or children surviving him, then his interest or his share is to be paid to such child or children, and when the youngest arrives at full age the principal is to be divided equally between them. As John Zeni-ner is still living, it cannot be known whether he will die without leaving children. The question whether the time of his death without leaving children, upon which event the principal sum given in trust for him is given to the other children of the testator, refers only to his death before that of the testator, or after (Washbon v. Cope, 144 N. Y. 281), is not involved in the case, for there was no one before the court in, any position to assert or resist any claim, under either view of that question. The judgment will not, therefore, be conclusive either way,. when the question occurs and becomes a practical and material one with proper claimants before the court. Until then the question is a speculative one merely, upon which no binding judgment could properly be given.
3. The testator did not give any general legacy to his daughter Maria Schinz, but left to his son Fredolin, in trust for her, “ one sixth of the rest, residue, and remainder ” of
Eor these reasons we are of the opinion that no reversible error occurred in that part of the judgment construing the testator’s will.
4. The executor, as such, took the legal title to'the entire
5. There was a trial upon issues made up in tbe county court pursuant to its rules in respect to certain portions of the respondent’s final account relating to certain expenses of administration, investment, and management of tbe estate alleged to be illegal and excessive, namely, an allowance to tbe respondent for attorney’s fees and extra compensation claimed by him in addition to statutory commissions and per diem, with tbe result set out in tbe foregoing statement. Tbe record shows that the-respondent was examined in open court, and that tbe court beard tbe allegations and all the
6. It appears upon the face of the judgment of the county court that there had been a settlement of the respondent’s account up to March 4, 1888, upon notice, at which one of the appellants was represented by a trustee and the other by her attorneys, who withdrew opposition to the account. It included $2,377.08 for extra compensation, besides $565.56 for -commissions. The appellants now claim that this settlement was not final and conclusive upon the matters embraced in it, and that on the hearing of the final account in the county court and in the circuit court they had a right to overhaul that account and contest, as of course, any of the items embraced in it. There is nothing in the record to ¡show that they were denied the right to do so. We have
7. The statute (R. S. sec. 3929) provides that, in addition-to the per diem and commission, the executor shall be allowed' as compensation such further sums, “in cases of unusual difficulty or extraordinary services, as the court shall deem reasonable.” The various lengthy accounts of the executor,., and schedules annexed, show the collection, management, loaning and reloaning on mortgage security of the moneys-of the estate from time to time for a period of over seven-years, by which the estate has been increased from $32,586.73'
8. It is urged that no extra compensation should have-been allowed, unless the same was set up as a claim in the statement of such final account as required by sec. 2, rule XVII, County Court Rules. This is a matter of practice- and does not go to the power of the court, and, had objection been made, it is fair to presume that the rule would have been enforced. Upon the trial of the appeal from the allowance of the executor’s account, in which the legality and reasonableness of the amount was in issue, the parties do not appear to have raised this objection, but consented that the action should be heard and decided upon the record. The objection which the appellants seek to make is not open to them on this appeal. The court might properly, under these circumstances, act upon the evidence agreed on and its-own knowledge in making the allowance. We perceive-nothing in the record to doubt the propriety of the allowance for attorney’s fees. The errors or defects in the pleadings and proceedings, relied on, founded on a noncompliance-with the rules of practice, do not appear to have prejudiced
There is no reversible error in the record.
By the Court.— The judgment of the circuit court on both appeals is affirmed, and the cause is remanded to the county -court of Winnebago county for further proceedings according to law.
On June 20, 1895, upon motion of the appellants, the judgment of this court was modified so as to provide that the taxable costs of both parties be taxed against and paid out of the estate of Fredolin Zentner, Sr., but one case and one set of briefs on each side to be taxed.