171 Wis. 608 | Wis. | 1920
It is agreed by all of the parties in interest that the intent of the testatrix is controlling. The controversy arises because different inferences are drawn as to her intent. The Nineteenth clause contains the following provision:
“At the time of my decease, a portion of my estate may be invested in such a way that it would be inexpedient to settle my estate within the period it ordinarily takes to settle an estate. Therefore, it is my wish that the executor hereby appointed need not divide my estate or pay any legacies until, in their judgment, such division would be for the best interest of my estate as a whole, but in no event shall my estate remain undivided under this provision for a longer period than three (3) years from the date of my decease.”
If the will contained no other provision, the argument made by respondents that the will shows no intent to depart from the settled rule would be entitled to great weight, particularly in view of the fact that this court has adopted
In support of their contention respondents cite the following cases: Loring v. Massachusetts H. Soc. 171 Mass. 401, 50 N. E. 936; Warwick v. Ely, 59 N. J. Eq. 44, 44 Atl. 666; In re Spencer, 16 R. I. 25, 12 Atl. 124; Kent v. Dunham, 106 Mass. 586; Ogden v. Pattee, 149 Mass. 82, 21 N. E. 227; O’Leary’s Estate, 255 Pa. St. 521, 100 Atl. 459.
As was said in Will of Elmore, 165 Wis. 266, 162 N. W. 438, authorities and rules are helpful, but each will must be interpreted in the light of the circumstances surrounding the testator. When the intent of the testator appears, it is the duty of the court to carry out that intent. Will of Stark, 149 Wis. 631, 134 N. W. 389. The provisions of subdivision Nineteen show that the testatrix had the matter of interest in mind,- for she provided for the payment of interest at the rate of five per cent, per annum, one per cent, less than the legal rate, upon such portions of the provisions covered by the Second, Third, Fourth, Fifth, Sixth, and Seventh paragraphs as should remain unpaid at the expiration of the three-year period. Had she intended that all the legacies should bear interest at the rate of six per cent, during the settlement period, there would have been no reason for the provision in regard to interest after the expiration of the three-year period. No z'eason is assigned or suggested why interest should be paid at the rate of six per cent, during the period of settlement, and at a lesser rate when by the terms of the will the legacies were due and payable. in addition she provided, by the clause marked “Nineteenth,” for the maintenance during the period of' settlement of those who were dependent upon her bounty. We are of the opinion that the provisions of the will indicate that the testatrix intended that the legacies should not begin
It is further contended on behalf of some of the respondents that under the provisions of the clause marked “Nineteenth,” interest at the rate of five per cent, was payable annually. The provision is that when the property is sold the proceeds shall “be applied from time to time to satisfy the unsatisfied portion of paragraphs marked Second, Third, Fourth, Fiffh, Sixth, and Seventh, together with interest at five per cent, per annum.” Where á contract provides for the payment of a certain rate of interest per annum, it only fixes the rate to be paid and has no reference to the time when such interest shall be paid, and interest so reserved is held to become due and payable only with the principal. 22 Cyc. 1483, and cases there cited. We see no reason why the same rule should not be applied to payments of legacies under a will. If this were not the general rule of law, the fact that by the terms of the will the payments required by the Second, Third, Fourth, Fifth, Sixth, and Seventh paragraphs are payable only when funds are derived from* the sales of certain property, indicates that it was the intention of the testatrix that the legacy, including interest, should be paid at one time.
By the Court. — Judgment of the county court is modified as indicated in this opinion, and as so modified is affirmed, appellant to recover costs in this court.