173 Wis. 464 | Wis. | 1921
The- following opinion was--filed January IT, 1921:
.The principal question ín 'thé easels The'-construction of-the 1-ahgúagé found in'paragraph-8 :of -the'will:''“in equal shares "to the then ' living ■ children-or 'lineal descendants-" by right' of - repfésentaíion -of -my -six "brother-sl 'to -witi David 'Dalrymple; 'M-árk';Dalrymplé,- "-Reü-'•ben" Dalrymple,' Clark - Dalrymple";' Oliver' -Dalrymple-, árid
. “Inheritance; 'or .-succession by right of representation, -takes place-when- the descendants of-any deceased" heir- take the ,s_ame- share.or. right in the estate of. another, person.-that their"páfeñt"would have taken if living; posthumous children are considered'as living at the death of their parents;”
•A.' considerable number: of. cases have been' cited to'our .'.'attention. :. .We have before'us'the.opinion of the trial court, Avhich .has:feceived'"OUr -'careful 'consideration: . The problem ■■.presented: .is one difficult- of: solution .and no conclusion .can : he-reached .with suclvdemonstrable certainty as to eliminate .'all doubts. v ' .;...
e.-.T-t-..is.conceded on ail- sides that'the intention-of the testator .-must"govern;' rWe.'are-aided' very.little' by the evidence as
Second and Third, the will provided: “At the expiration of ten (10) years after my decease or at such other time or times after said ten (10) years but prior to the expiration of twenty (20) years from my decease as my said executors and trustees or their successors in the trust shall deem expedient or advisable and for the best interest of my estate, I direct,” then follow words for distribution of his estate. We are of the opinion that by the use of the words “time or times” the testator intended to and did give to the executors and trustees a discretion as to the distribution of his estate within the period limited, with the right to make partial distribution thereof as the circumstances might
Margaret Foss Tullís, a daughter of Minnie Belle Foss, one of the legatees, died November 19, 1917, intestate, leaving no issue, and leaving her surviving her husband, Ernest Tullís, and her sister, Helen G. Foss, and her brother, Richard D. Foss, and no other heirs at law or next of kin. That part of the estate ready for distribution having vested as of the 20th day of September, 1917, and Margaret Foss Tullís leaving ho issue, under the law of this state her right in the estate of the testator passed to her husband, Ernest Tullís, upon her death.
In this connection, we may say that in our opinion the remainder of the estate will vest at the expiration of the twenty-year period or at such prior time or times as the executors and trustees may, in their discretion, fix for the distribution thereof.
Fourth. The fund being distributed being a part of the residuary estate, and the right thereto having vested with the filing of the petition September 20, 1917, the legatees are entitled to the accumulations of the fund in the interim. The ordinary rule as to specific legacies bearing interest does not apply.
By the Court. — Judgment reversed, and cause remanded with directions to the circuit court to enter judgment in accordance with this opinion.
On March 8, 1921, a motion for a rehearing was denied, without costs, and the mandate modified to read as follows:
By the Court. — Judgment reversed, with directions to the circuit court to enter judgment as indicated in the opinion of this court, each appellant to tax disbursements, including