Allen v. Boomer

LyoN, C. J. It is earnestly maintained on behalf of the executor and legatee, Edward Allen, that the will of Mrs. Allen is unambiguous in its terms, and hence that no testimony of extrinsic facts is admissible to aid in the construction thereof. We think this is a correct position. Although the will was drawn by a person not learned in the law (one learned in the- law would shrink from drawing such a will), yet it must be admitted that it is clear in its terms, and there is no' difficulty in gathering therefrom what was the intention of the testatrix and what disposition she desired to make of her property. It seems also to be claimed that the execution and contents of Edward Allen's will are extrinsic facts, proof of which should be excluded under .the above rule. This proposition is, to say the least, a very doubtful one. In her will Mrs. Allen refers to the will of her husband as expressing a mutual agreement between them. It is probable that by such reference she substantially incorporated his will in hers, as effectually as she would have done had she set it out in her will in heee verla. It was so held in Newton v. Seaman's Friend Soc. 130. Mass. 91. Hence proof of the contents of Mr. Allen's will can hardly be said to be proof of an extrinsic fact. But, however that may be, we shall determine the construction of Mrs. Allen’s will by its own terms alone, without regard to the will executed by her husband or any agreement with him, or to any of the extrinsic facts proved on the hearing in aid of construction. In other words, our construction of the instrument will be the same as it would be had Edward Allen never known of its existence until after the death of his wife, and never conversed with her on the subject. On this basis we proceed to construe the will of Mrs. Allen. 1. On the authority of the cases of Jones v. Jones, 66 Wis. 310, and Knox v. Knox, 59 Wis. 172, it cannot be doubted that both the county and circuit courts held cor [371] rectly that Edward Alien took only a life estate in the property devised and bequeathed to him by his wife. The argument that the general words employed in the will convey to him the whole of her estate is fully answered by Jones v. Jones; and the argument that the provisions for the support of the minor heirs named in the will, and the residuary clause therein, are mere precatory clauses, is fully answered by the case of Knox v. Knox. That was a stronger case than this for the construction contended for, because the devise and bequest which was there held to be for life only was to the devisee and legatee, and to “ her heirs and assigns forever.” There are no words of inheritance in the provision for Mr. Allen in the will of his deceased wife. 2. The will in terms disposes of the property of Edward Allen, and gives him property belonging to the testatrix. The law is well settled that this put Mr. Allen to his election whether he would take under the will, or reject the provision made for him therein and stand upon his rights as they existed irrespective of the will. The rule in equity is that if A. by his will gives property to B., and at the same time gives C. property belonging to B., the latter is put to his election. He cannot take the property given him by the will and at the same time deprive C. of the property thus given him. He must refuse to take under the will, or allow C. to have the property thus given him, although the testator had no power to dispose of it. The rule is laid down by the best text writers, and is established by numerous adjudications of courts of the highest authority. Indeed, the justice and equity of it is very obvious. The best statements of the adjudications on the subject, and of the principles upon which the rule is founded, that have come to our notice, may be found in 1 Pom. Eq. Jur. § 461, and following; and in Mr. Swanston’s notes to Dillon v. Parker, 1 Swanst. 359, and Gretton v. Haward, id. [372] 408. These notes seem to embrace all the learning on the subject at the time th'ev were written. The discussion of the subject by Mr. Pomeroy is also very learned and satisfactory. See, also, 2 Story, Eq. Jur. § 1077; 1 Jarm. Wills, 443; Ditch v. Sennott, 117 Ill. 362. The authorities leave no reasonable doubt that Edward Allen was put to his election whether he would take under the will of his deceased wife or not. He could not elect to take under the will as to the devise and bequest therein to him, and reject it as to the residue. An election by him to take under the will binds him by all its provisions which affect him or his property. 3. Edward Allen propounded the will of his deceased wife for probate, qualified as executor under it, and administered her estate. He claimed all the residue of her estate under the will, to the exclusion of her heirs and his own, both in the county and circuit courts, and he is in this court asserting the same claim. We are of the opinion that these acts on his part are an election to take under the will. He must be held, therefore, to all the equitable consequences which result from such election. 4. Mrs. Alien’s will in terms charges the support of certain minor heirs on the two estates. It is reasonable to presume that she intended thereby to charge each estate with one half of the expenses of such support. She having given a life estate to her husband in all her property, which necessarily gives him the income thereof, it is also reasonable to presume that she intended her- share of such expense should be paid out of the principal of her estate. The other half must be paid by Edward Allen. As one means of enforcing such payment the court may, so far as necessary, appropriate thereto the income of the estate of Mrs. Allen, which would otherwise go to her husband. 5. Upon the death of Edward Allen the two estates must be distributed to the respective heirs of him and his wife, [373] in equal shares, as specified in her will, and the court has ample power to declare, and should declare, a trust for their benefit in his estate, and has power also to restrain him from squandering or otherwise disposing of his estate to the injury of such heirs. Briefly to recapitulate: The will of Mrs. Allen should be construed and effect given thereto as follows: Edward Al-im takes under it the whole of her estate for his life, less a sufficient amount thereof to pay one half the expenses of the support and education of the three minor heirs named and provided for therein. He is chargeable with the other half of such expense, and, if necessary, the court will sequestrate to that.purpose the income of the estate he takes under Mrs. Allen’s will, and if the same is insufficient to pay his half of such expenses the court will charge the deficiency on the residue of his estate. The court will further adjudge that Edward Allen holds his own estate in trust for his heirs and the heirs of Mrs. Allen, to be distributed to them at his death, as specified in her will, and will enjoin him from wasting or making any disposition of his estate to the injury of such heirs. By the Court.— The orders and judgments of both the county and circuit courts are reversed on both appeals, and the cause will be remanded with directions to the circuit court to enter judgment approving the final account of the executor, and disposing of the estate of Mrs. Allen as herein indicated. The judgment will contain the provisions above suggested for the security of the heirs and beneficiaries under the will and the protection of their rights in the estates of both Mr. and Mrs. Allen. Such judgment will be certified to the county court for its guidance in settling the estate of Mrs. Allen and in directing the conduct of the guardians of the minor heirs. The taxable costs of the executor, and of the heirs who have litigated these appeals in this court, will be paid out of the estate of Mrs. Allen.