Will of Stark, 149 Wis. 631

149 Wis. 631 | Wis. | 1912

WiNsnow, O.' J.

The appellant Lucy A. Hayt Stark makes certain objections to the validity of the appeals from the county to the circuit court taken on behalf of Theodora Stark, Prank G. Stark, Kate A. Inbusch, and Julia May Stark and Charles P. Conde jointly, and on behalf of Charles-Pdward Stark individually, and these objections will be first briefly considered. It appears that the judgment of the-county court was entered June 23, 1910, and Lmcy A. Hayt Stark seasonably appealed, but no appeal was taken on behalf of said joint appellants within the sixty-day period prescribed ■by sec. 4031, Stats. (1898), because they and their attorney were of opinion that the appeal of the widow took the entire-matter to the circuit court to be tried de novo, and hence that. 310 other appeal was necessary. After the trial commenced in tbe circuit court, however, on December 19, 1910, they became convinced that they could not raise the objections which they wished to raise to the judgment below without taking an appeal themselves, and they made application in open court, upon affidavit showing the facts, for leave to take such appeal immediately, all parties being present, and all consenting thereto, except Mrs. Starle. The court, however, overruled her objections and made an order allowing the appeal to be taken at once, and it was perfected on the following day. The statute which gives the circuit court power to thus enlarge the time for appealing, and permits an appeal to be taken after the sixty-day period has expired, requires that the petition therefor must be filed within one year, and that it shall not be allowed without reasonable notice to the adverse party. Sec. 4035, Stats. (1898). The only question here is whether the notice was reasonable. While the notice was short, we are unable to say that it was not reasonable. Under some circumstances, perhaps, it would not be reasonable to allow an appeal to be taken on oral notice in court as this was allowed, but no special circumstances appear here to condemn the action of the court. The trial of the case was continued to a later date and not finally concluded for several months. No showing of surprise or hardship is made; and it seems to have been in furtherance of justice to allow all substantial and bona fide contentions concerning this important will to be fought out on the merits at the same trial.

The objection to the appeal of Charles Edward Starle, a minor, is of a different nature. In this case the guardian ad litem gave the notice of appeal seasonably, but was under the impression that under sec. 4032, Stats. (1898), which relieves certain personal representatives, including guardians, from giving bonds upon their own appeals, no> bond was necessary in case of an appeal by the minor. He did not discover his error until the trial of the appeals had begun, and then filed a bond in due form in tbe county court, which was returned at once to the circuit court. It is stated in the brief that it was filed in the circuit court with the approval of the trial judge, but we have found no statement to that effect either in the record or the bill of exceptions. It does appear, however, that the circuit court proceeded with the trial of the case in all respects as if the infant’s appeal had been properly taken, and tried and determined the issues raised thereby, and we must conclude that the court impliedly, if not expressly, approved of the procedure followed. This court has already held that the appeal in such cases is so far taken as to give the circuit court jurisdiction by the filing of the notice of appeal within the required limit of time, and that when such a notice has been given the bond may be perfected after the sixty-day period, and the default in the timely filing of the bond may be waived by proceeding to trial without objection, or may be cured by order of the appellate court allowing such belated filing, in analogy to the construction which has been given to the statutes regulating appeals to this court. Charmley v. Charmley, 125 Wis. 291, 103 N. W. 1106.

Both appeals are therefore held to be effective.

The most important question in the case arises on the appeal of Mrs. Stark, and concerns the meaning and effect of that part of item 22 of the will which disposes of the residuum of the estate. The trial court held in effect that it was the intention of the testator that, after the specific devises to the widow had been paid and the $250,000 fund for the widow’s support had been set aside in the hands of the trustee, and a sufficient sum reserved, the income of which would discharge the taxes and needed repairs on the homestead, the balance then in hand should be at once divided among the residuary legatees, such legatees being the children of the testator’s brothers and sisters who were living at the time of the testator’s death. This construction results in the creation of a series of residuums, or perhaps what might be called a residuum iu parcels. First will be tbe residuum to be distributed after the payment of the bequests to the widow, the setting aside of the $250,000 trust fund and the $25,000 fund to care for the homestead. Presumptively this distribution will take place very soon after the debts are ascertained and paid. Next will come the distribution of the $55,000, which under items 5 and 6 of the will, as changed by the second and third codicils, is to become “a part of the residuary estate” upon the death of Mrs. Starkj and next, in case of default in meeting the conditions, will come the distribution of the funds bequeathed to the children’s hospital, which last distribution will take place four years after the death of Mrs. Stark. In the meantime there may be several small distributions under the decree of the court by reason of the fact that the court held that, if there should be any surplus income derived from the $25,000 fund after payment of taxes and necessary repairs on the homestead, the same should be distributed to the residuary legatees. The question is whether this is the proper construction of the will, or, in other words, was this the intention of the testator ?

There can be no doubt that this construction gives an unusual, if not an absolutely new, meaning to the term “residuum” or “residuary estate.” Residuum means what is left. Blackstone defines it as the surplus “when all the debts and particular legacies are discharged.” 2 Bl. Comm. 514. It is otherwise defined as “that which remains of a decedent’s estate after debts have been paid and legacies deducted.” Black, Law Diet. (2d ed.) 1027. “The surplus of a testator’s or intestate?s estate after discharging all his liabilities; wha.t remains after administration, properly so called, is concluded.” 34 Cyc. 1662. See, also, to the same effect, Robinson v. Millard, 133 Mass. 236; Bouv. Law Dict. title “Residue;” Morgan v. Huggins, 48 Fed. 3.

However, if the testator intended that there should be a number of residuums, to be distributed from time to time as ■they occurred, bis intention should, of course, be carried out, .and to discover wbat bis intention was in this regard is the first duty. In considering this question a review of the testator’s situation and the circumstances surrounding him will be helpful. At the time the original will was made, May 21, 1902, the testator had reached a ripe age and had amassed a ■considerable fortune. He was evidently an exact and methodical business man, who had thought out a scheme for the ■disposition of his estate. He was married, but had never had children or adopted children, but he had brothers and sisters who had been blessed with children, and these were, of course, the natural objects of his bounty, at least after due provision for his widow. The amount of his fortune at this time does not appear, but at the time of his death, six years later, it amounted to nearly $100,000, so that it can probably be safely ¡assumed that he was worth considerably more than half a million dollars at the time of the making of the original will His wife was then sixty-three years of age. Nothing appears as to the pecuniary circumstances of his brothers and sisters or their children. Having determined 'to make his will, he ■called in an experienced lawyer to draft it for him. It is ¡said in one of the briefs that this lawyer was his friend, the late Charles E. Dyer, but the statement was withdrawn on the argument, because the evidence of the fact did not appear in the bill of exceptions. The writer of this opinion has no doubt personally that Judge Dyer drew the will from the fact that an envelope is returned with the exhibits in the case which evidently contained the will when drawn, and which is indorsed, in Judge Dyer’s unmistakable handwriting, “Chas. Q.' Stark’s Will.” However, the question as to what lawyer ■drew the will is not of great moment. It shows in every sentence and in every line that it was drawn by a lawyer of experience, who knew the meaning of legal terms, who prepared 'it carefully, and who used no words at haphazard. These two men, the careful, painstaking, successful business man, wbo bad evidently laid out bis scheme in bis mind, and the-equally careful and painstaking lawyer, who bad spent bis life-at bis profession, collaborated together and produced the will before us.

A mere reading of the will leaves no doubt that there was. one idea which was paramount in the testator’s mind, namely, the idea that bis beloved wife was to be not only adequately but abundantly provided for during her whole life, so that, there should be no possibility of her ever encountering want, or privation. This paramount purpose is conclusively proven by the provisions made for her in the first five items of the-will (which were afterwards substantially augmented by the-second and fourth codicils, as the testator’s estate grew), and by the twenty-fourth item, by which it appears that his. thought returned lovingly to her at the very close of the will,, and he again made it apparent that whatever happened to. other legatees her interests were to be protected.

Second only to this paramount purpose was the purpose-that there was to be no hasty closing out of the estate. Mr. Stark had doubtless spent many years in the amassing of this-property. Nearly $200,000 in value thereof was in real estate. He contemplated the ultimate distribution of the bulk of his property among his blood relations, but, like most men-who have made their own fortunes by gradual accumulations,, he did not wish to see anything sacrificed. The property set. apart for the use of his wife, which at the time probably reached well towards one half of the estate, must necessarily be kept on hand during her lifetime, and one half thereof, designed for the children’s hospital, might have to be kept for-four years after the wife’s death. Ten or twelve years does: not seem a long time for the prudent management and conversion of an estate which the testator has spent forty or fifty-years in acquiring. The provisions of the will generally bear testimony to the desire of the testator to avoid haste, but if there were any doubt of such intention it would be removed by the final clause of the will, where the testator expressly says that it is his wish that his executors have ample time to administer the estate, “so that no property, effects, or assets of my estate shall be unduly sacrificed by too speedy conversion of the same into money.”

The object next in importance in the testator’s mind was evidently a purely philanthropic one. He strongly desired to leave in the city where he had spent his life and amassed his fortune a monument to his memory in the shape of a children’s hospital, which was forever to bear his name, and which was to be open “for the reception of such poor, neglected, and destitute children of the age of fourteen (14) years and under who are sick” as the managers should agree to receive.

At the time of the execution of the will the testator had one sister, Sarah J. Smith, and two brothers, Joshua Stark and Theodore E. Stark, still living, and these relatives naturally would be and in fact were the next subjects of his bounty. He therefore gave to them out of the $250,000 fund reserved for the wife’s support $30,000 each, but it is important to note that these gifts do not take effect until after the wife’s death, and hence might not be carried out for a number of years. As if to make up for the probable long delay in the realization of these bequests, he then makes immediate gifts of $15,000 each to the same legatees, or to their children if the original legatees do not survive the testator, and after making a number of small charitable bequests gives $5,000 to each of his nephews and nieces living at the time of his death. The testator then comes to his residuary estate, and after taking out of it two small bequests gives the balance to the “then living children of my brothers and sisters,” excepting one to whom liberal allowances had already been made.

Now if the trial court was right in holding that this residuary bequest goes into effect at once, not only is the result anomalous in that residuary legatees step into beneficial enjoyment of tbeir legacies long before specific legatees, but also in that the nephews and nieces of the testator, who were evidently last in the testator’s thought, are given preference in point of time to< their parents, the brothers and sisters of the testator, who, though advanced in years, are forced to wait for possession of .the major portion of their legacies until the death of the wife.

Of course, the testator could do these things if he chose, but if there be doubt as to the intention the improbability of his desiring to do them is significant.

There can be no doubt that the testator had in his mind a definite time when the residuary clause was to take effect. Some event was in his mind when he used the words “then living.” Was that event his own death, as the trial court found ? We cannot think so.

The will bears every mark of the careful lawyer’s hand. Words were not used carelessly or unadvisedly. The scrivener knew just how to express every idea in exact legal phrase. It contains numerous exact conditions and limitations over. Many gifts are made to take effect “upon the death of my said wife,” some to take effect if the legatee “shall survive me,” or “shall survive my said wife,” and some to legatees “living at the time of my death.” The scrivener was exact in every expression until he came to this clause, at least. Did he then suffer a mental lapse and use words thoughtlessly and unadvisedly ? We think not.

It is true that there is no event like the death of a life tenant, or the like, specifically mentioned in item 22 to which the word “then” can be referred, but we are well satisfied that there was an event in the mind of the testator and the scrivener, and we are further satisfied that such event was not the testator’s death, for when there had been occasion to refer to that event in the prior clauses of his will it had been referred to in unmistakably accurate language. What event, then, was it ? To our minds it seems certain that it was the final completion or determination of tbe amount of tlie residuary estate, either by tbe full performance of tbe conditions on wbicb tbe legacy to tbe children’s hospital was based or by tbe dropping into tbe residuary fund of that legacy by reason of nonperformance of tbe conditions. Under tbe scheme of tbe will this was tbe last contingent event wbicb was to take place. All specific legacies, save tbe two contained in tbe residuary clause, were expected to be fully carried out and completed before tbe determination of tbe fact whether tbe children’s hospital legacy was to be effective or not, and when that fact was determined then it was known for tbe first time wrhat tbe residue in fact was, and tbe “balance” to be divided was first determined.' This was tbe event wbicb was to fix tbe “balance,” and this was tbe event wbicb would naturally be chosen to fix tbe partakers in tbe “balance.”

If this conclusion were to be considered doubtful under tbe language of item 22, considered by itself, it seems that all doubt must be removed when that part of item 6 wbicb provides for tbe legacy to tbe children’s hospital is considered. By reference to this item it will be seen that $125,000 is placed in trust for tbe benefit of tbe hospital upon condition that tbe hospital association shall be incorporated and shall have contracted for tbe erection of a $50,000 building within four years after tbe wife’s death, and that in tbe event of tbe failure to comply with these conditions the entire bequest is “to pass into and become a part of tbe residue of my estate under tbe residuary clause of my will,” and “be distributed as a fart of tbe residue of my estate -in equal portions, share and share alike, to tbe then living children of my brothers and sisters.”

These clauses are very significant in two respects: first, as tending to show that tbe testator contemplated one entire residuary fund, of wbicb tbe lapsed legacy was to become a part, and not three or four separate residuary funds, of which the lapsed legacy was to be tbe last of tbe series; and second, but of far more importance, as showing conclusively that when the words “then living children” were used in this provision they referred definitely and certainly to the event of the failure on the part of the hospital association to comply with the condition, and cannot reasonably be construed as referring to any other event.

In a will where every clause bears the impress of the experienced lawyer’s work; where apt phrases have been carefully used prescribing what shall take place in many and various contingencies; and where the same phrasing has been twice used and may well bear the same construction in both places, the fact that it must have a certain construction in one place is certainly very persuasive as a consideration for placing the same construction on it in another place. We have no hesitation, therefore, in holding that the will contemplates but one residuary estate, which is not to be distributed until it be determined that the bequest to the children’s hospital has become absolute or has lapsed, and that it is then -to be distributed to the children of the testator’s brothers and sisters (except William Stark Smith) who shall be living at the time of the happening of that event.

There are other persuasive considerations which lead to the same result. Thus, the will and codicils refer several times to “the residue of my estate,” and “my residuary estate,” always as one definite thing. Now if an experienced lawyer were drawing a will which contemplated such an unusual thing as residuums in relays, or rather a residuum which was only nominally such, but really a receptacle to be at intervals replenished and drained off, it seems passing strange that he should not have definitely provided in unmistakable terms for such replenishments and distributions. The will, however, does no such thing. Notwithstanding the consummate care which is noticeable in every clause, there is no hint of any desire or intention to create a number of successive funds. In this connection it is significant to notice the language of tRe first and. twenty-second items, concerning the payment of the taxes and repairs on the homestead. In the first item it is ■directed that these amounts “he paid from the residue of my estate after providing for the specific devises, bequests, and legacies hereinafter mentioned.” In the twenty-second item it is provided that “all the rest, residue, and remainder of my property, of every name and nature, wherever situated, after providing for the devises, bequests, and legacies hereinbefore mentioned and after the use of so much thereof as may be necessary to defray the expense of taxes on my homestead and of keeping the same in repair for the use and benefit of my wife ■as provided in the first item of this my will, I give, devise, and bequeath as follows,” etc. In both places the residue is described as what may remain “after” providing for the specific devises, bequests, and legacies. Now, the word “after” ■does not always denote subordination in time, but may indicate merely subordination in right. Ordinarily, however, it is used to denote subordination in time, and we see no sign here of an intention to use it otherwise than in its usual sense. Furthermore, the fact that in both places the residue seems to be referred to as one constant, continuing fund, out ■of which the taxes and repairs are to be defrayed, strengthens ■the idea that the word “after” is used here in its ordinary meaning.

Again, the testator by the third codicil to his will increased the immediate gifts which he had made to his nephews and nieces “living at the time of my death” from $3,000 to $5,000 each. This is significant in two ways: first, it shows how exactly the testator spoke when he desired to malee bequests to his nephews and nieces who were living at the time of his ■death, and thus rebuts the idea that he used the words “then living” as meaning the same thing; and second, it would be really useless to make this gift at all, if the residuary clause were to have the construction claimed for it by the resp'ond--ents, because without it the same beneficiaries would receive the same money at practically the same time in their capacity as residuary legatees.

It is objected that the idea of keeping intact so large a fund for a number of years, and thus unnecessarily depriving the residuary legatees of its beneficial use, is fantastic and unjust to the beneficiaries, but this argument can have little weight. The testator could do what he would with his own; his nephews and nieces had no rights save such as he chose to give them. If in the excess of his solicitude for his wife’s welfare he chose to impound for years his hardly-earned property to an unnecessary degree, they have really no cause to complain. The testator may have been over-cautious, but he did no injustice to any one by being over-cautious with his own property. It being determined that the testator intended that there should be one residuum, and not a series of recurring residuums, and that the one residuum is bequeathed to those .nephews and nieces who shall be living at the time the hospital trust fund is either earned or forfeited by the hospital association, the question as to the disposition of the accumulated rents and profits resulting from the residuary estate during this period of waiting becomes important.

It is suggested that under the terms of the will the whole estate may be regarded as equitably converted into personal property, and that the will must be treated as a will dealing only with personal property. This would be true if the scheme of the will could not reasonably be carried out without the conversion of the real estate into money. Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650. But it seems to be very clear that there is no such situation. There was in the estate somewhat less than $200,000 worth of real estate, exclusive of the homestead. It is not claimed that it will be necessary to dispose of any of this real estate in order to discharge the specific legacies of every kind and provide for the payment of the taxes and repairs upon the homestead. On the contrary it seems entirely certain that the personal .estate is much more than sufficient to meet all said demands. Under such circumstances the fiction of equitable conversion cannot be indulged in, especially in the absence of any definite provision in the will looking in that direction. On this subject it is very significant that the will gives very full and explicit authority to the executors to sell and convey the homestead after Mrs. Stark’s death, but is absolutely silent as to any other conveyance. Evidently the testator did not expect that any other conveyance would be necessary. This conclusion is strengthened also by the fact that at the very beginning of the residuary clause he speaks of “All the rest, residue, and remainder of my property, of every name and nature, both real and personal, wherever situate,” etc. This would indicate that he had not contemplated that the real estate would be necessarily converted into money prior to the going into effect of the residuary clause.

If he expected the real estate to remain intact, he must have expected also that there would be rents and profits coming in year by year, for much of the real estate was rented and bringing in a profitable income. He gave no specific directions for the disposition of this income, except such small amount as might be necessary to discharge the taxes and repairs upon the homestead, and these must, of course', be discharged out of the personal estate before resorting to the real estate or the rents therefrom. He must be deemed, therefore, by his silence to have directed that it accumulate. Scott v. West, 63 Wis. 529, 578, 24 N. W. 161, 25 N. W. 18. 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 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).

What then shall be done with the rents and profits of the real estate? That depends upon the question, Who is presumptively entitled to the next eventual estate in the lands ?

Sec. 2064, Stats. (1898), provides that “when, in conso-quence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation or of the ownership, during the continuance of which the rents and profits shall be undisposed of and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate.”

It seems.that this section undoubtedly applies to the present case. The estate of the present living nephews and nieces of the testator is an estate in expectancy under sec. 2033, Stats. (1898), and of the class denominated future estates “limited to commence in possession at a future day, either without the intervention of a precedent estate or on the determination, by lapse of time or otherwise, of a precedent «estate created at the same time.” Their estate is of the first class of future estates above named, because it commences at a future day without the intervention of a precedent estate. Such a grant is valid. Ferguson v. Mason, 60 Wis. 377, 19 N. W. 420. It fulfils all the calls of sec. 2064, supra. It is an estate in expectancy; there is a valid limitation upon it in consequence of which there is a suspension of the power of alienation, if not in fact of ownership, during one life in being and possibly four years thereafter; the rents and profits during that time are undisposed of; and no valid direction for their accumulation has been given. Until, therefore, the residuary legatees become absolutely fixed by the earning or forfeiting of the hospital bequest, the living nephews and nieces are presumptively entitled to the next eventual estate, and hence to them belong the rents and profits of the real estate, except such part as may possibly be necessary to defray the taxes and repairs upon the homestead, and this contingency seems very remote, as the personal estate must first be resorted to for that purpose. This will necessitate keeping separate accounts of the income from the personal estate and of the income from the real estate, and making periodical distributions of the real-estate income to the presumptive residuary legatees.

As to the joint appeal on behalf of Theodora, Stark and four others a few considerations will suffice.

Their first contention is that under item 4 of the will the widow could not select certificates of bank stock, because they are not “securities,” and that if she can do so she must take the stock at its actual value instead of at its face.

We think the trial court was right upon both these questions.' While the word “securities,” construed strictly, does not cover corporate stock, but rather bonds or evidences of debt, it has undoubtedly acquired a much broader meaning by general usage. It is said in 25 Am. & Eng. Ency. of Law (2d ed.) at page 180, “The term in its broadest sense embraces bonds, certificates of stock, promissory notes, bills of exchange, etc.” The Century Dictionary defines “securities” as “evidences of debt, or of property, as a bond or certificate of stock.” See 1 Cook, Corp. (6th ed.) sees. 14 and 305, to the same effect. Indeed it may be said, we think, to be matter of common knowledge that the word is generally used in this broad sense.

The testator at the time of his death possessed both stocks and bonds in good measure. The stocks were most valuable. It was his evident intention to give his wife the opportunity to take instead of cash something which was more valuable’ than the cash, if she chose. Nothing indicates any intention to limit her in her choice to the less valuable class of papers which are ordinarily called “securities,” and we hold, therefore, that the court rightly held that she might choose bank stock as she did. Nor do we see any good reason to doubt that when the testator used the term “par value” he meant “face value,” as the trial court held.

' Their second contention is that the sum of $25,000 is too large a sum to set aside out of the residuary estate to provide for the payment of the taxes and repairs on the homestead. Inasmuch as we have held that the entire residuary estate is to be kept intact, this contention necessarily falls.

The appeal of Charles Edward Stark, a minor son of Charles Edward Stark, deceased, will be briefly considered. This minor was a grand-nephew of the deceased; his father died in 1905, and his grandfather (Theodore F. Stark, brother of the testator) in 1904, both dying before the testator. lie claims to be entitled to share in his father’s right in the legacies given by the ninth, sixteenth, and twenty-second items of the will.

The ninth item gives $15,000 to Theodore F. Stark (appellant’s grandfather), but provides that in case he does not survive the testator said sum is to be given “to the children of said Theodore F. Stark who shall be living at the time of my death, share and share alike.”

The sixteenth item gives $5,000 to “each of my nephews and nieces who shall be living at the time of my death.”

The twenty-second item is the residuary clause, and gives the residue to the “then living children of my brothers and sisters.”

No one of the terms used in either of these items includes the appellant in its accurate sense. Tie is not a child of Theodore F. Stark, nor a nephew of the testator, nor a child of the testator’s brother or sister. It is true that the word “child”' is sometimes properly construed as applying to a grandchild, and nephew may be held to cover grand-nephew, but when such a construction is given the reason is that the evident purpose of the testator demands it.

In the present case there is no- such reason. On the contrary, the care with which the will is drawn and the uniform precision of its expressions forbid any such latitude in construction. There are two clauses in the will where express provision is made for children to take the share of a parent in case of the death of snch parent prior to the happening of a given event, and in each case the most accurate and complete legal phraseology is used to express the idea. In view of these considerations, we have no hesitation in affirming the trial court’s conclusions on the points presented by this appeal.

The judgment must be modified in accordance with this opinion so as to determine that the residuary estate shall remain undistributed until the time when the trust bequest to the children’s hospital shall be earned or forfeited, at which time the residuary estate becomes vested in the then living beneficiaries named in the twenty-second item; that the surplus income, if any, of the residuary personal estate, past and future, over and above the sums required to pay the taxes and repairs on the homestead, be added to the general residuary estate; that the net income already derived from the residuary real estate be distributed to the present presumptive residuary legatees at once, and that the future income (except in case some part be necessary to defray taxes and repairs on the homestead) be annually distributed to the presumptive residuary legatees until the time when the amount of the residuary estate is determined and the status of the beneficiaries fixed as above set forth. In all other respects the judgment is correct.

By the Court. — The judgment is modified as indicated in the opinion, and as so modified is affirmed. All parties who printed briefs and appeared by counsel in this court will be entitled to tax their statutory costs, to be paid out of the estate.

Timlin, J., took no part.