135 Wis. 60 | Wis. | 1908
ITenry V. Williams died November 19, 1900, leaving real and personal estate which he devised and bequeathed: (1) Use of all to' his widow, Elizabeth, during her natural life, with full power and authority to manage and control tire same; (2) household furniture to his daughter’, Cora A.• — this gift to take effect at the death of the widow; (3) to his daughter, Cora A., one third of all remaining at death of widow; (4) to his son Peter C., one third of all remaining at death of widow; (5) as follows:
“I will, devise, and bequeath unto my said daughter’, Cora A., and son Peter C. Williams the other one-third part of my said estate remaining at the death of my said wife, Elizabeth, in trust, nevertheless, for nry son Henry E. AYilliams, and authorize and direct them to use and manage said other third part as to them seems best and pay tó my said son Henry E. tire income of such third part yearly, and in their discretion to pay to him from time to time such part of said one third as in their judgment is proper for his comfort and support until said one-third part is all paid to him, said Henry E ”
“It is ordered that said application be heard before this ■court at a special term thereof to be held at the probate office in the city of Elkliorn on the 20th day of August, 1901, at 10 o’clock a. m. It is further ordered that notice of the time ■and place of examination and allowing said final account and of assigning the residue of said estate be given to all persons interested by publication of- a copy of this order for three successive weeks in the Whitewater Register, a newspaper published in said county, before .the day fixed for said hearing.”
An order made August 20, 1901, thereupon recited the -said application and that “due notice of the time and place of such hearing has been duly given by publication as required by law and the order of this court heretofore made in this case.” This order then described the property then remaining in the hands of the executors as $334.10 in money and 100 acres of land and three lots in the village of Whitewater, all specifically , described. It recited that the deceased left him surviving his widow, Elizabeth, and his only children, Cora, Peter C., and Henry E. Williams, all over twenty-one years of age, and that proof of heirship had been made and filed. The order then proceeded:
“Wherefore it is ordered and' adjudged by the court that said, final account of said executors as stated be and the same is hereby allowed and confirmed. And it is further ordered that said balance of personal property shown by said final ■account be and the same hereby is.assigned to the said three -children as provided in the said will of the deceased, Henry "V. Williams. And it is further ordered and adjudged that*64 said real estate hereinbefore described be and the same is-hereby assigned to said'three children, Gora, Henry E., and: Peter 0. Williams, share and share alike and undivided, as-provided in the will of said deceased, Henry V. Williams,, and all of said personal and real property is subject to the-life estate of the said widow, Elizabeth Williams, as provided in said will.”
The scope and effect of this order assigning the estate is-the subject of much discussion, but in the view we have taken of the provisions of the will it will not be necessary to determine the conclusive effect of this order upon the parties then before the court. See, however, Perkins v. Owen, 123 Wis. 238, 101 N. W. 415; Appeal of Schaeffner, 41 Wis. 260; S. C. 45 Wis. 614; Estate of Leavens, 65 Wis. 440, 21 N. W. 324; Baker v. Baker, 51 Wis. 382, 15 N. W. 425; Ruth v. Oberbrunner, 40 Wis. 238.
On December 17, 1902, Henry E. Williams died intestate. On March 17, 1904, Elizabeth Williams died intestate. Henry E. left surviving him his widow, Ida M., his son,. Henry Eddy, and his daughter, Edith A. Williams, who, together with the administrator of Henry E. Williams, are-the plaintiffs in this action, begun in the circuit court against Peter G. and Gora A. Williams individually and as executors.. All parties assumed the jurisdiction of the circuit court and' both prayed for affirmative relief, opposite in effect but of' the same legal nature. The findings and decree of the circuit court were to the effect that the trust of one third of the residue for Henry E. Williams failed on account of his death, before the termination of the life estate and the commencement of the active duties of the trust, and that this one third thereupon became intestate property of the estate of Henry Y. Williams,.and as such descended in equal parts to the heirs at law of Henry Y. Williams, deceased, but’ without naming or. otherwise designating who were such heirs a.t law. The circuit, court also found that such heirs at law were entitled to-par tition.
One may search this will in vain for any word or sentence restricting the vesting in Henry E. of this equitable interest in remainder.- The devise is absolutely in trust for him. After the termination of the life estate of his mother the whole income is to be paid to him. Eor the usual legal effect of a devise of the whole income of a fund without limitation over or restriction to the period of the donee’s life, compare Gulick v. Gulick’s Exrs, 27 N. J. Eq. 498, with Matter of Smith, 131 N. Y. 239, 30 N. E. 130. That the time of enjoyment is postponed until after the termination of the precedent life estate neither prevents vesting nor indicates an intention of the testator that the equitable interest should not vest. The provision that the trustees should in their discretion pay over the corpus of the trust estate to Henry E. in instalments from time to time until the whole thereof was paid to him indicates an intention of 'the testator that this whole equitable interest should vest at once in Henry E.., subject only to the life estate, and subject to be enjoyed .by the said Henry E.- — the income in any event, and'the corpus or capital in the discretion of the trustees. This vested equitable estate upon his death descended to his children and widow as prescribed_ by the statutes in case of intestate estates. Burnham v. Burnham, supra. In such case there is no room for the contention that the trust created by the will failed or terminated by the death of Henry E. prior to the termination of the life estate of his mother. Where a re.mainder after a life estate is devised in trust for a person living at the death of the testator and the equitable interest thereby created is vested, the death of the cestui que trust prior to the termination of the life estate does not defeat or terminate the trust in the sense that the object of the testator in creating the trust has failed, and the trust properly be
In an action to construe a will the circuit court should, whenever possible under the issues made and presented, finally dispose of all questions relating to the descent and distribution of the property. This was not done in the case at bar, and the result is that this comparatively small estate would be subject to the expense of successive actions for construction or further proceedings in this action in order to ascertain and determine the descent and distribution of this property, unless without the benefit of argument or presentation we indicate our views upon the final disposition to be made of the case. This we do with extreme reluctance and only to save the threatened waste of the property in litigation. It seems to us from the provisions of the will that the testator intended a conversion of this one third of the real property. In order that the trustees should pay over to Henry E. “from time to time such part of said one-third part as in their judgment is proper for his comfort and support,” successive and fragmentary sales of fractions of this undivided fractional remainder must be made, or the whole fractional remainder must be converted by the trustees into money. The latter view is the more reasonable and best accords with the will of the testator as we read it. We believe such conversion necessary in order to carry out such intention. Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650. Eor the purposes of descent and distribution-.the property will be considered as all personal property. The widow and children of Henry E. are his heirs at law and share equally therein. There should be no partition, but the trustees should proceed to sell the one-third part of all the real estate and convert it into money, and the [sum so realized; together with
It follows that the judgment of the circuit court must be reversed, and the cause remanded with directions to enter a decree for a salé by the trustees and an accounting and distribution in accordance with this opinion. Only the usual taxable costs will be allowed to appellants, and no allowance-will be made to respondents.
By the Court. — It is so ordered.