In re Stuart's Will

Oassoday, O. J. Tbe rule seems to be universally recognized that every will must be construed in accordance with the intentions of the testator, as expressed in or implied from the language employed. Both parties in this case impliedly concede, if they do not contend, that such intention of the testator must control in the case at bar. The widow claims “that all of the property, real and personal, of the deceased, ■was given to her absolutely by the will.” That is contrary to the opinion of the circuit court, and also of the county court, and is clearly untenable. If the testator intended to give all his property to his widow as an absolute estate, he never would have provided that she might “retain” the property “during her natural life for her own use,” nor that “after her decease” the property should be “subject” to the “legacies” therein mentioned, nor would there have been a residuary clause disposing of the remainder of his estate after the death of his widow. On the contrary, we must hold that the will did not give her an. absolute estate in any of the property of which the testator died seised. The testator, by the first clause of his will, however, did expressly authorize the widow to sell and dispose of all of his estate, both real and personal, as should to her seem fit and proper, or to retain the same in specie during her natural life for her own use. But whether she sold and disposed of all of the estate, or any part thereof, or retained the same, or any part thereof, in specie, during her natural life, for her own use, yet the '«'■hole estate, and every part thereof, was so given, “subject, after her decease,” to the “legacies” therein-after mentioned. The word “legacy” “is more commonly applied to money or other personal property . . . than to real estate.” Sehouler, Wills (2d ed.) § 5. But the word “acquires readily a popular sense, which regards rather the [298] value of tbe gift than the elements, real or personal, of wbicb it may happen to be composed.” Id. In the will before us it manifestly applies to all the gifts thereinafter mentioned, including real estate as well as personal property. That is to say, the words, “subject, after her decease, to the following legacies,” must be regarded as carried forward, and incorporated into each clause making a bequest or devise. The most difficult portion of the will to construe is the second clause. That clause, among other things, provides that the stock therein given “to Mary W. Mitchell, and to each of her surviving sons and daughters,” is “to be by them held for the income thereof.” But, as indicated, such stock was only to be so held by them “for the income thereof” after the death of the widow. During the life of the widow she was to have the income thereof, and the power of sale, and the income from the proceeds thereof in case of sala Again, the second clause of the will gives “to Nettie 8. Emery the use during her life” of lot 3 in block 64; “then that lot, as well as lots Nos. seven and eight” of block 79, are “to go to Kittie Emery as an absolute estate, bequeathed to her by her grandparents.” But by reason of the first clause of the will neither Nettie 8. Emery nor Kittie Emery could take such gift in possession until after the death of the widow, who, during her life; had the use of such property in specie, with the power of sale and disposition, and the income from the property or money received in lieu thereof. The same is true in respect to the stock given to Ezra IT. Stuart and to Kittie Emery in the second clause of the will, and also the bond given to Moses ITarman in the third clause of the will. Of course, as indicated, in case the widow sells and disposes of any of the estate, she must preserve the proceeds thereof, or what she gets in exchange therefor, for the benefit of the residuary legatees named in the fourth clause of the will, and only convert the income or use thereof. Such construction seems to be in harmony with prior decisions of this court and [299] other courts. Jones v. Jones, 66 Wis. 310, 28 N. W. 177, and cases there cited; Allen v. Boomer, 82 Wis. 364, 52 N. W. 426; Meyer v. Garthwaite, 92 Wis. 575, 66 N. W. 704. The taxable costs of both parties in this court are payable out of the estate. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in- accordance with this opinion, and for further proceedings according to law.