100 Wis. 633 | Wis. | 1898
It appears from the record that the testator, Edwards J. Stark, of Milwaukee, died February 4, 1897, leaving a will made and dated December 17, 1889, which was proved and admitted to probate March 2, 1897, and letters testamentary were thereupon issued to the plaintiff Charles G. Stark. The fifth clause of the will is as follows, to wit: “I give and bequeath to my brother Charles G. Stark, of the city of Milwaukee, Wisconsin, as trustee, the sum of ten thousand ($10,000) dollars, in trust for the use and benefit of my nephew Charles Edward Conde, of the said city of Milwaukee, but upon the following limitations and conditions, to wit: Said sum shall be invested by said
The executor proceeded to administer the estate in accordance with the will. On October 2, 1891, he filed with the county court his petition giving an account of his administration, and praying, among other things, for a construction of the fifth paragraph of the will quoted. Upon due notice given and hearing had, the county court, May 4, 1898, adjudged and decreed that the executor of the will should pay the sum of $10,000, with interest, if any, mentioned in the fifth item or paragraph of the will, to Frank G. Stark, Kate
Upon the hearing of such appeal it was found by the circuit court, as matters of fact, in effect, that Edwards J. Stark died testate February 4, 1897; that his last will and testament was duly admitted to probate March 2, 1897; that Charles C. Stark, the executor named therein, was duly appointed and qualified as such executor, and has since been acting as such; that such executor has in his hands, ready for distribution, money sufficient to pay, satisfy, and discharge all the legacies in the will provided for; that Edwards J. Stark was a bachelor, and at the time of his death left him surviving, as his only heirs at law, three brothers and two sisters, and the said Charles Edward Conde, the latter being the only child of a deceased sister of the testator; that the names of the brothers of the testator surviving him are Joshua Stark, Charles C. Stark, and Theodore F. Stark, and the names of his sisters are Maria H. Stark and Sarah Jane Smith; that the will contained, among other provisions relating to other legacies or bequests, the fifth paragraph, quoted; that Charles Edward Conde was born March 3,1866; that his mother was a sister of the testator, and died in 1877; that Charles Edward Conde arrived at thirty years of age March 3, 1896; that the testator did not die until about eleven months afterwards; that the children of Joshua Stark surviving at the date of the testator’s death were Frank G. Stark and Kate A. Inbusch, and that the children of Sarah Jane Smith surviving at the same date were Alice Smith, Mary Spencer, Carrie Smith, and William Stark Smith, all of whom are still living and of the age of twenty-one years and upward.
As conclusions of law the court found, in effect, that, under the terms of the will quoted, the legacy of $10,000 vested in
Prom the judgment entered thereon accordingly the plaintiffs bring this appeal.
Of course, the will did not become effectual until the testator died and the same had been admitted to probate. Scott v. West, 63 Wis. 555. The bequest is, in effect, to the executor, as trustee, in trust for the use and benefit of Conde upon the conditions and limitations that he (the trustee) would keep the sum mentioned invested until Conde should attain the age of thirty years; and that “ if at that time said trustee ” should deem Conde “ competent to care for and make prudent and proper use of the said sum,” and should be of the opinion that it would be safe and advisable to do so, “ then ” he was thereby required to pay it over to Conde; but if, in consequence of Condds business habits or personal conduct, or for any other reason, said trustee, in the exercise of his best judgment, should at that time be of the opinion that Conde
The case comes within well-recognized rules of law. Thus, it is said by an old and learned author that: “A fifth instance of exception must be made out of the positive rule applicable to the vesting of legacies, where the gift of the legacy and the time of payment are in terms distinct, when the period for payment is contingent, as upon the marriage or the taking of holy orders of the legatee; for in neither of those instances will the legacy vest before the happening of the contingency, as we have seen it would have done had the time of payment been certain. The distinction is founded upon the following reasoning: It must be inferred that where the time is certain, as when the legatee attains the age of twenty-one, the testator merely postponed the payment of the legacy in consideration of the legatee’s unfitness to manage his affairs prior to that period; but, when the event annexed to the payment may or may uot happen, it is to be presumed that the expectation of its taking place was the sole motive, and therefore of the essence of the bequest.” 1 Roper, Legacies, 562, 563. For illustrations of the rule, see Id. 566-572. Following text writers, this court has declared that: “ Legacies payable at a future time certain to arrive, and not subject to a condition precedent, are vested. . . . On the other hand, legacies only payable on an event which may never happen, and hence subject to a condition precedent, are contingent.” Scott v. West, 63 Wis. 566. Thus it is said by another text writer that: “ When a future time for the payment of the legacy is defined by the will, the legacy will be vested or contingent, according as, upon construing the will, it appears whether the testator meant to annex the time to the payment of the legacy, or to the
As already indicated, in the case at bar the manifest intention of the testator was that Concle should not receive the bequest except on condition of his fitness, to be so determined by his executor. The gift to him was contingent upon the judgment and opinion of the executor as to his character and competency. By the terms of the will the executor was required to exercise such judgment and express such opinion when Conde attained the age of thirty years; and, if at that time Conde's business habits and personal conduct were satisfactory to the executor, then he was required at once to pay over the bequest to Conde. As indicated, when Conde reached that age the testator was still living, and, of course, there was no executor, much less one having power to so determine. Nor was there any executor until more than eleven months afterwards. By reason of that fact, the court are of the opinion that the circuit court was right in holding, in effect, that the executor had no right or power to determine whether Conde's business habits
My own judgment is that the executor had, under the will, the power and right to determine the competency or incompetency of Oonde, and to carry into effect the purpose of the testator as expressed in the portion of the will quoted, notwithstanding the testator did not die until nearly a year after Conde became thirty years of age. No authority has been cited by counsel to that effect, however, and, with the limited time at my command, I have found none.
The costs and disbursements of all parties in this court and in the circuit court are payable out of the estate. The county court will make such allowance to the respective parties out of the 'estate for counsel fees as, in the exercise nf a sound discretion, may be just.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.