111 Wis. 102 | Wis. | 1901
It is suggested by respondent’s counsel that the order, so called, of the circuit court, is not appeal-able because it is merely interlocutory in character, not terminating an action.and preventing a judgment from which an appeal could be taken. ’ The determination of the matter in the circuit court was interlocutory as regards the proceedings in the county court, but a final determination of' such matter in the former court. It was to all intents and purposes a final judgment and appealable as such, though it was, in form, ah order. The statute (sec. 4037, Stats. 1898), regulating proceedings in the circuit court in such matters, provides:
“ The circuit court may reverse or affirm in whole or in part the act appealed from and may render such judgment as may be proper or make such order therein as the county court ought to have made, and may remit the case to the county court for further proceedings in pursuance of the opinion of the circuit court, or may make any order, or take-any action therein, or enforce its own judgment, as such circuit court may deem best.”
The decision appealed from was rendered pursuant to that, statute. It was the judgment of the circuit court on the matter presented for adjudication and must be tested, as to-its appealability, by the statute on the subject of appeals-from judgments. The final determination of appeals in the-circuit court in such cases is characterized, in the words of the section referred to, as “ a judgment,” and that must necessarily be its character. Whether the determination of a court is an order or a judgment within the meaning of the-appeal statute, cannot always be solved by mere form. The nature of the adjudication and of the proceeding must be-considered. A proceeding upon appeal, as regards the appellate court, is an action, or a proceeding in the nature of
It is elementary law that precatory words in a will, following a bequest or devise in general terms, expressing a desire or wish as to the ultimate use or disposition of property devised or bequeathed, or some portion thereof, by the person taking the title in the first instance, may be construed as creating a trust in such first taker for the benefit of the other person or persons named, if that, under all the circumstances, appears clearly to have been the intent of the
“ Every case stands upon the evidence of the testator’s intention, arising out of each will. In questions of intention, cases, unless they coincide in words and every other circumstance, never assist, but perplex the exposition. A will is the picture of a man’s mind; and one may as well look at the picture of one man to know the person of another, as look at the will of one mind to know the mind of another.”
It will serve no valuable purpose to go at length into a, discussion of the multitude of cases that exist, where words expressing a wish, hope, desire, or request have been construed as equivalent to words of command and to create a trust with the same definiteness as if the intention of the testator, were made manifest by language in its literal sense. The subject was very fully discussed by Mr. Justice Tatlob, speaking for the court, in Knox v. Knox, 59 Wis. 172, and several general rules were there deduced from the teachings of courts and eminent text-writers, which need no addition, and by the aid of which the intention of the testator, in cases of this kind, can be determined with the highest .degree of certainty practicable by judicial construction. Such
By applying the foregoing rules to the will in question, the intent of the testator is not difficult to discover with reasonable certainty. He left a widow of an age which rendered a second marriage on her part among the probabilities, and three minor children, the two older ones being girls and the youngest of the three being a boy. The last two of the children were born after the will was executed. He left an estate so large that he must have expected that the income thereof, under proper management, would exceed the amount necessary to support his widow in comfort during her natural life and provide for the support and education of his children. One would expect under such circumstances that a man would not leave it within the power of his widow to handle his estate as her absolute property, not making any certain provision whatever for his infant children. The persons to whom the precatory words apply
While, as said in Knox v. Knox, 59 Wis. 172, apt words were used to convey a full title to the estate to the wife, that circumstance is consistent with the view that the conveyance was in trust for the object subsequently indicated. If that object had been expressed by using words in their literal sense, the words of conveyance would have been the
It follows that we must hold that the will in question 'should be read as intending to give the property of the testator to the respondent for life, with remainder over to such of "his children as may be living at the termination of the life estate, and making respondent a trustee of the property so far as required to effect that purpose. It is not necessary to indicate here the precise scope of respondent’s power over the property as the first beneficiary thereof or to decide finally that she is entitled to a life estate in the
In the foregoing, as will be seen, we have only intended to construe the language of the will, showing that the testator did not intend that respondent should possess all his property as hers absolutely. Whether notwithstanding the conclusion reached she has a life estate in the property as against the two children born after the making of the will, depends upon whether a provision was made for them thereby. Sec. 2286, Stats. 1898. The construction we have given to the will is absolutely essential to sustain it at all as against the two younger children. If notwithstanding such construction the contingent remainder provided for such children be not considered a provision within the meaning of the section referred to, then they are entitled to share in their father’s estate the same as if he had died intestate. The fact that there was only one child when the will was made and that the contingent remainder was left to the testator’s child or children living at the death of his wife, indicates that he had in mind the probability of after-born children and intended to make some provision for them. In re Donges's Estate, 103 Wis. 497. It will be readily seen that the circumstance of there being children born after the date of the will stamps the judgment appealed from as unquestionably erroneous.
Since no further proceedings in this case need be had in the circuit court the order or judgment appealed from will be reversed and the record remanded direct to the county
By the Court. — The order or judgment appealed from is reversed and the record directed to be transmitted to the county court of Monroe county, which court will upon receipt of such record proceed in the settlement of the estate and administration thereof in accordance with this opinion. The taxable costs in this court on both sides will he paid out of the estate.