205 Wis. 259 | Wis. | 1931
The county court, as clearly appears from its findings of fact, conclusions of law, and decision, based its order construing the will of Isidor Schilling, deceased, upon the following conclusions of law which are claimed by appellants to be erroneous:
1. That ch. 287 of the Laws of 1925, now sec. 230.14, Stats., amended not only said section as it theretofore existed but also sec. 230.37 of the Statutes, which had the effect of prohibiting both accumulations of rents and profits of real estate except as therein specifically provided, and also accumulations of income from personal property except as
2. That because ch. 287 of the Laws of 1925 amended sec. 230.37, as hereinabove stated, it became unnecessary for the court to determine whether the whole estate, under the terms of said will, should be treated as personal property under the doctrine of equitable conversion.
3. That sec. 230.40 was applicable to the situation created by the terms of said will and that Alice Schilling Mould was one of those presumptively entitled to the next eventual estate, and that, since any accumulation was void as to her when she became twenty-one years of age (she having attained to that age), she was then presently entitled to a one-fourth part of the accumulated income and would be entitled, in the future, to a one-fourth part of the income from such one-fourth share remaining after paying to Ella Schilling, the widow, the sum of $150 a month until the death or remarriage of the latter; that William Schilling was one of those presumptively entitled to the next eventual estate and the income as to him was not void until the expiration of his minority, at which time he would be entitled to three fourths of the accumulated income and three fourths of the annual income thereafter, after paying to Ella Schilling the said sum of, $150 a month until her death or remarriage.
Did ch. 287 of the Laws of 1925 amend both secs. 230.14 and 230.37? Ch. 287 of the Laws of 1925, including its title, is as follows:
Chapter 287.
“An Act to amend section 230.14 (2038) of the statutes relating to the limit of suspension of the absolute power of alienation of real and personal property.
“The People of the State of Wisconsin, represented in Senate and Assembly, do enact as follows:
Section 1. Section 230.14 (2038) of the statutes, is amended to read: 230.14 (2038). Every future estate shall*267 be void in its creation which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter; such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed. Limitations of future or contingent interests in personal property are subject to the rules prescribed in relation to future estates in real property; provided, however, that this limitation upon interests in personal property shall not apply to any instrument which shall have taken effect prior to July, 1925.”
Prior to the enactment of ch. 287, Laws of 1925, sec. 230.14 (2038), Stats., was as follows:
“230.14 (2038) Every future estate shall be void in its creation which shall suspend the absolute power of alienation for a longer period than is prescribed in this chapter; such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.”
This section was enacted in 1849 and was borrowed from the state of New York (Rev. Stats. N. Y. 1836, title II, art. First, sec. 14), which state had, at that time, a similar statute relating to personal property (Ibid., title IV, sec. 1). Much controversy arose in this state as to whether this statute, sec. 2038, as it existed prior to 1925, included within its scope personal property, and whether, if it did not include personal property, the common law as to perpetuities in personal property was in force in this state. In Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103, decided in 1879, it was held, in an opinion by Mr. Chief Justice Ryan, that our statute did not apply to personalty and that the enactment of that statute abrogated the English doctrine applicable to personalty. The court said (p. 96) : “But were this otherwise, the statute limiting the rule against perpe-tuities to realty manifestly abrogates the English doctrine as applicable to personalty. . . . (Page 97) : The bequests in this will must therefore be considered as bequests of
Five years later in De Wolf v. Lawson, 61 Wis. 469, 21 N. W. 615, this court referred to the views expressed in Dodge v. Williams, supra, to the effect that our statute limiting the rule against perpetuities to realty abrogated the English doctrine as applicable to personalty, saying (p. 474) :
“There can be no question but the statute refers to real estate alone. It may, however, admit of doubt whether the remark of the Chief Justice is strictly accurate in saying that it abolishes the common rule of perpetuities as to personalty when applied to private trusts.”
Again in Harrington v. Pier, 105 Wis. 485, 82 N. W. 345, it was intimated that the language of the court in Dodge v. Williams was unnecessary to the decision. This court, however, said, in reference to the holding in that case (p.493):
“Whether such is the settled law, so as not to be open for discussion, need not be decided in this case. Where a question affecting property rights has been judicially settled so long as to have become a rule of property, for the courts to disturb it, even if settled wrong at the start, would be a greater wrong than the original mistake; and in such circumstances the maxim Stare decisis, et non quieta movere, should be pretty rigorously applied.”
Still later on, in Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650, the holding in Dodge v. Williams, and subsequent decisions, was painstakingly reviewed, the court concluding (p. 130) :
*268 , “Now we have gone over the history in this state of the subject of whether we have the common-law rule as to perpetuities respecting personalty, and have seen that, instead of a mere passing remark or individual expression of opinion by the Chief Justice in Dodge v. Williams, on the subject, we have the deliberate judgment of the court, estab-
Whether the original decision of this court in Dodge v. Williams was sound is not material now, since the enactment of ch. 287 clearly amended the statute which had been repeatedly construed to.apply only to future estates in realty, so as to make it clearly applicable to future or contingent interests in personal property. A review of the decisions construing sec. 230.14 as it existed prior to its amendment in 1925 has been deemed advisable for the purpose of showing that doubts as to its construction were from time to time raised, that heated controversy as to its proper construction and applicability was waged, and that this court,
Sec. 230.37, Stats., on the other hand, has given rise to no controversy as to its intent and meaning. It has always been construed to apply only to accumulations of “rents and profits of real estate.” In Scott v. West, 63 Wis. 529, 24 N. W. 161, 25 N. W. 18, it was said, in a carefully considered opinion by Mr. Justice Cassoday, who so vigorously dissented in Becker v. Chester, supra (p. 585) :
“But what has been said in reference to illegal accumulations applies only to rents and profits of real estate, whether such as the testator owned at the time of his death, or such as have since been, or may hereafter be, purchased by the executors. Our statutes do not extend to accumulations from personal property. Notwithstanding the real and personal property is given by the same clause of the will and upon the same trusts, yet they are severable, and the validity of the one does not depend upon that of the other. Knox v. Jones, 47 N. Y. 389.”
Again in Will of Stark, 149 Wis. 631, 655, 134 N. W. 389, it was stated:
“As to accumulations resulting from the income of personal estate, there is no legal objection to such a direction (Scott v. West, supra) ; but our statutes do not permit*271 accumulations of the rents and profits of real estate except for certain specified purposes and uses, which are not present here. Secs. 2060-2063, Stats. (1898).”
No question as to the soundness of so construing sec. 230.37 seems to have arisen in the minds of any member of this court as it was constituted at the time those cases were decided, for both opinions in the cases just mentioned were unanimously concurred in.
That sec. 230.37 applies only to accumulations of rents and profits of real estate seems so plain as to admit of no reasonable doubt. That section is as follows:
“Accumulation of profits of lands. An accumulation of rents and profits of real estate for the benefit of one or more persons may be directed by any will or deed, sufficient to pass real estate, as follows:
“(1) If such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise it must be made for the benefit of one or more minors then in being and terminate at the expiration of their minority.
“(2) If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise it shall commence within the time in this chapter permitted for the vesting of future estates and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority.
“(3) For the sole benefit of a literary or charitable corporation which shall have been organized under the laws of this state, but such accumulation must terminate upon the expiration of twenty-one years from the time when the same shall be directed to commence.”
This section was also borrowed from the state of New York (Rev. Stats. N. Y. 1836, title II, art. First, sec. 37). It is significant that that state also had a similar statute specifically applicable to accumulations of income of personal property {Ibid., title IV, sec. 3), which this state never
Referring again to ch. 287 of the Laws of 1925, it seems clear that it amended only sec. 230.14 and was not intended to amend or affect sec. 230.37. Its title speaks plainly as to its purpose — “An act to amend section 230.14 (2038) of the statutes relating to the limit of suspension of the absolute power of alienation of real and personal property.” That its purpose was to amend only sec. 230.14 is reiterated at the very beginning of sec. 1: “Sec. 230.14 (2038) of the Statutes’is amended to read: 230.14 (2038).” Sec. 230.14, by this act, was amended by adding to the statute as it theretofore existed, the following: “Limitations of future or contingent interests in personal property are subject to the rules prescribed in relation to future estates in real property; provided, however, that this limitation upon interests in personal property shall not apply to any instrument which shall have taken effect prior to July, 1925.” It seems clear that the purpose of this amendment was to apply to future estates or interests in personal property the same rules as had theretofore been applied by said section to future estates in real estate, to the end that both future estates in real estate and future or contingent interests in personal property shall be void in their creation which shall suspend the absolute power of alienation for a longer period than is prescribed by sec. 230.15, to wit, two lives in being and twenty-one years (now thirty years).
That this is the plain, reasonable construction which should 'be placed upon ch. 287 seems clear when the respec
“Where the sale is directed to be made at some future, time or upon the happening of a future event which is certain to happen, the general rule is still that the conversion is deemed to take place as of the date of the testator’s death. Underwood v. Curtis, 127 N. Y. 523, 28 N. E. 585; 3 Pomeroy, Eq. Jur. § 1162.”
The court, after citing authorities supporting .the contrary doctrine, said:
“These are eminently respectable authorities and support plaintiff’s right to recover in the case at bar. But, as we have stated, the great weight of authority is to the effect that when there is no discretion left in the executor as to whether a sale shall be made, and the time in the future when it is to be made is definitely fixed, or the event is certain to happen, the conversion takes place as of the date of the testator’s death, and that this determines not only the rights of the legatees, but those of assignees or creditors of a legatee.”
It is the conclusion of the court that the provisions of this will plainly indicate an intention on the part of the testator to have the properties belonging to his estate converted into personalty and that the doctrine of equitable conversion therefore applies, effective as of the date of his death.
Having concluded that the terms of this will require all of the property to be considered as personalty, under the doctrine of equitable conversion, and that sec. 230.37 was not amended by ch. 287, Laws of 1925, and in no way prohibits accumulations resulting from the income from personal property, or that which must be considered personal property, it becomes unnecessary to discuss respondents’ contention that sec. 230.40 is applicable and resulted in the giving of one fourth of the accumulated income to Alice when she attained to the age of twenty-one years, and further resulted in her being entitled to one fourth of the income after paying Ella Schilling $150 per month until Ella Schilling shall die or remarry and William shall be twenty-
• “And in case of the death of the wife of said Ernest Schilling or in case she shall again marry, the entire income from said share shall be given to the children of said Ernest Schilling, one fourth of said income to be paid to Alice Schilling, daughter of said Ernest Schilling, and three fourths thereof to be paid to William Schilling, son of said Ernest Schilling.”
This is the only provision of the will relating to the payment of any income to either Alice or William and obviously has no force or effect in the absence of the death or remarriage of Ella Schilling prior to the time when William Schilling attains to the age of twenty-one years, for the will further provides:
“When,both Ernest Schilling and Ella Schilling, his wife, are dead, or when Ernest Schilling is dead and his wife shall remarry, and the youngest of said children shall be twenty-one years of age, then my trustees shall distribute said share of my estate as follows: To Alice Schilling, daughter of said Ernest Schilling,' two thousand dollars ($2,000); and all of the remainder of said share shall go to my grandson, William Schilling, son of Ernest Schilling.”
It is apparent from this will — paragraph 8 (f) — that the testator first intended that Ernest Schilling should have one fourth of the income from the trust estate so long as he should live; that in case of his death, Ella Schilling, wife of Ernest Schilling, should have such income during her natural life or so long as she remained a widow, not to exceed, however, the sum of $150 per month, to be used by her as she saw fit for the support of herself and children; that the remainder of said income, after paying the said sum of $150 per month to Ella Schilling, should be accumulated for the benefit of that portion of the estate put in trust for Ernest
This will is clearly and carefully drawn, and, since the law relating to it is now established by this decision, there should be no difficulty in construing it in accordance with its plain provisions and this opinion.
Were it within the province of this court to remake rather than construe this will, we would be strongly inclined to make some of the income presently available for the support and education of William, but this we cannot do. A will may be fairly construed to determine its true intent, but it cannot be changed by the court against such intent even though the interested parties are agreeable to such change. Will of Zweifel, 194 Wis. 428, 216 N. W. 840; Will of Rice, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778.
By the Court. — The order of the county court of La Crosse county construing the will of Isidor Schilling, deceased, is reversed, with directions to construe said will in accordance with this opinion.