Tabor v. Tabor

85 Wis. 313 | Wis. | 1893

WmsLow, J.

The controlling question presented is whether the words of the will create a precatory trust, so that, notwithstanding the absolute devise of a fee to the widow in the first part of the will, she must be held to take only a life estate, coupled with a trust as to the remainder in favor of the children. The subject of precatory trusts was very fully investigated by this court in Knox v. Knox, 59 Wis. 172. It was there said by the late Mr. Justice Taylor that the two important questions to be considered in such a case are: “ First, has the testator, in his expressed request, clearly pointed out the persons whom he desired should be the recipients of his bounty, and has he clearly defined the part of the estate which he desired they should receive? And, second, does the language used by him clearly show that he intended it to be obligatory upon his wife, to whom he had devised all his property in fee, and not merely advisory? ” Accepting these questions as the tests to be applied in deciding whether a precatory trust is created by this will, it would seem quite difficult to say that the testator has in this will clearly defined the part of the estate which he desired his children to receive; but we do not decide this question, because our conclusion as to the proper solution of the second question renders it unnecessary. "We think it very clear that the words of the will clearly show that the testator intended his expressions to be merely advisory and not in any respect obligatory. The will was drawn by a lawyer. After devising all his estate to his wife, “ the real estate in fee simple, and the personal estate by a like absolute ownership,” he proceeds: “Ido this in full trust and confidence that she will provide for the distribution of the same by her last will and testament among our children, Luke, George, Charles, John, Ma/ry, and Anna, in such proportions as shall be just and right.” Had he stopped here, the argument would be very strong that he intended these words to be obligatory upon his wife, notwithstanding the previous devise of a fee, and the case would be in this respect very like the Knox Case, above referred to; but he proceeded to say in the same sentence: “But this expression of trust and confidence is not to be interpreted as limiting her right of ownership or power of distribution.” This language can have but one reasonable meaning. The widow’s right of ownership, by the specific terms of the will, was an absolute fee simple. The testator says that his expression of trust and confidence is not to be construed as limiting this right. How, then, can a court so construe it? It seems to us that if we were so to construe it we should be making a new will for the testator, against his positive declaration. The Knox will contained no similar words. Lewin, Trusts (7th ed.), 122.

It is objected that the judgment does not in terms construe the will. The findings construe the will, and the judgment dismisses the complaint on the merits. This is sufficient

By the Court.— Judgment affirmed.