218 Wis. 63 | Wis. | 1935
The original will of the testatrix devises the residue of her estate to the Manufacturers’ National Bank & Trust Company of Racine, in trust, to pay her son, John C. Fitton, during his lifetime, the net income, and upon his death to pay the net income to his wife, “should he have a wife, or wife and children surviving him, for her or their support and maintenance during the lifetime of such wife, and upon her death to deliver to my son’s children the estate remaining at such time in the hands of my said trustee, to share and share alike.” It was provided that in the event the son “shall not be survived by a wife and children, or wife or child, it is my will that the income of the trust fund” shall be paid to certain charitable organizations. The codicil revokes the charitable bequest and contains the following provisions :
“In the event my son, John C. Fitton, shall not be survived by a wife and/or children, it is my will that the trust hereby created shall be closed and the assets thereof distributed to the legal heirs of John C. Fitton under the laws of the state of Wisconsin.”
Testatrix died May 10, 1933, leaving as her sole heir her son, John C. Fitton. Within two months thereafter the son died, leaving as his sole heir his wife, Violet Stolberg-Fitton,
The first question presented by this appeal is: To whom does the remainder pass upon the termination of the life estates created by the will? The will makes no disposition of the remainder in the situation presented here. There is a provision against the contingency of John C. Fitton’s death without wife or children, but none in the event that he leaves surviving him a wife but no children. Since the latter event has happened, and since the failure occurs in the residuary clause, there is an intestacy as to the remainder. . Respondent’s contention that since the will limits the son to a life interest, and since a life estate in the wife follows his death, should she survive him, he is to be eliminated as sole legal heir of the testatrix, thus letting in as her heirs at her death certain of her blood relatives other than the son. In so far as this contention is based upon the assumed intention of the testatrix to limit her son to a life estate, it must fail for the reason that it has already been determined that there is an intestacy as to the remainder, and, if this is so, the will cannot affect the devolution provided by law in such a contingency.
The contention that the situation is somehow affected by the fact that a life interest in the wife of John C. Fitton was to follow his death, in case she survived him, is also without merit. In tracing the devolution of an intestate remainder, the character of the precedent estates created by the will are of no materiality. John C. Fitton took the remainder as sole legal heir of testatrix, and appellant takes as his sole heir. The cases of Webber v. Webber, 108 Wis. 626, 84 N. W. 896; Benner v. Mauer, 133 Wis. 325, 113 N. W. 663; Eggleston v. Swartz, 145 Wis. 106, 129 N. W. 48; and Perkins v. Burlington L. & I. Co. 112 Wis. 509, 88 N. W. 648, are not in point. Three of these cases involved the construction of wills, and one involved the construction of a deed of trust. In each the remainder was effectively disposed of by the instrument under consideration.
The general rule with respect to merger is thus stated in Bowlin v. Citizens Bank & T. Co. 131 Ark. 97, 198 S. W. 288, 289, 2 A. L. R. 575, 577:
“Appellants contend that under the doctrine of merger of estates and acceleration of remainders, the trust was terminated when the beneficiaries of the life estate acquired the interest of the remaindermen. As a general rule this is true when the estates, both legal and equitable, unite in the same person, but otherwise, if the merger is held in-abeyance by the clear intent or purpose of the trust.”
As in the case above cited, it is contended that the trust was terminated when appellant, the sole beneficiary of the life estate, became also the sole remainderman, and this contention is clearly sound unless the “merger is held in abeyance by the clear intent or purpose of the trust.” Respondent cites Will of Hamburger, 185 Wis. 270, 201 N. W. 267. In that case testator devised the property in question to trustees to pay the net income to his wife and “subject only to this bequest in trust for and during the life of my said wife, the principal of this bequest is given, devised, and bequeathed to my wife to become her sole and separate estate, to be disposed of by her, by will or otherwise; and if she do not so dispose of it, to become upon her death part of her intestate estate.” It was there contended that since the life interest and the re
An examination of the will in this case will not support such a conclusion. The purpose of creating a trust during the life of the wife was principally to preserve the remainder in fee for the children of John C. Fitton, in case there were any. The indifference of the testatrix as to the disposition of the remainder in case there were no children sufficiently discloses the absence of any purpose to prevent a merger should the equitable and legal estates ultimately vest in the same person. There is nothing in the will to indicate that the 'intent of the testatrix or the purpose of the trust will be defeated if the trust is terminated at this time by operation of the doctrine of merger. The mere fact that testatrix directed the property to be held in trust, and the income paid to appellant for life, is not sufficient to indicate such an intent and purpose as were found in the Hamburger Case. If it were otherwise, the doctrine of merger would have no operation. The court must be
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in accordance with this opinion. No costs to be taxed upon this appeal; clerk’s fees to be paid by appellant.