Wolbert v. Beard

MaRSiiall, J. It is conceded that if testator purposed' that the control of his estate should remain with the executor,, acting as trustee, after conclusion of the ordinary administration, plaintiff had no interest in the land sought to be partitioned, denominated in sec. 3101, Stats. 1898, an “estate in possession,” and so is not entitled to maintain the action. The case, therefore, must turn on the construction given to the will. The property, in express terms, was willed to appellant and [395] bis sister, subject to tbe homestead right of the widow. It is evident, however, it was intended that the right of possession should be separated from the legal title, since it was provided that the'share willed to the daughter should be paid to her four children in case of her death during the lifetime of her husband, and that claims to a large amount against appellant, part being in favor of the estate absolutely and part contingently, should be paid out of his share. The duty of making such payments, as regards both shares, was imposed on the executor. It is difficult to see how that duty could well be performed unless he retained control of the property with authority to convert the same into money. The words “pay to her four children share and share alike”' as regards the share contingently willed to the daughter, and the words “charged to him and to be deducted from his share” as regards appellant’s portion, pretty clearly show that the purpose of the testator was that his estate should be treated as personalty. It would hardly be possible to take an estate composed largely of realty, divide it into two shares, satisfy out of one share a large amount of claims necessarily payable only in money, and subdivide the .other share into four parts and pay one of such parts to each of four persons, in any other way than by converting the whole into money. In such circumstances such an intention is to be presumed 'and the doctrine of equitable conversion applied. Becker v. Chester, 115 Wis. 90, 91 N. W. 81, 650. Obviously it would be impossible to execute that part of the will relative to making such four payments without controlling the daughter’s share till after the death of her husband. In harmony with the foregoing, the testator expressed a desire that his executor shonld not surrender control of the estate upon the settlement of his account'covering the administration period, but that under an appointment by the county judge as trustee he should assume, after such term, full control of all the property and remain in such control so long as [396] necessary to fully carry out all purposes expressed in tbe will. Tbe idea tbat sucb a period would not terminate till tbe death of bis widow is clearly manifested by tbe direction for control to last and tbe income as it accrued to be paid into tbe bank for disbursement so far as necessary, in payment of tbe widow’s annuity of $600 per year, till sucb annuity should be fully paid. Further, tbe words expressly directing tbe “real estate be kept intact” till all claims should be liquidated (meaning till tbe debts of tbe deceased proved against bis estate should be paid), and if tbe heirs “should prefer to continue receiving tbe proceeds they will have tbe right to do so by securing” prompt payment of tbe annuity, by necessary implication mean tbat after payment of all claims against tbe estate tbe ■executor or trustee need not longer keep the real estate intact, but may convert tbe same into other property under'the broad •discretionary power given to manage tbe estate for tbe best interests of all in bis jxidgment, subject to tbe opportunity ■afforded to tbe heirs as stated. Tbe words “continue to receive tbe proceeds” by themselves would suggest a prior receipt thereof by tbe heirs, but tbat would contradict tbe express requirement for tbe executor or trustee to receive sucb proceeds and deposit the same in tbe bank during tbe annuity period. Sucb words must mean tbat if tbe heirs prefer receiving tbe proceeds of tbe property in specie to having tbe executor or trustee accumulate tbe same they may do so by securing payment of tbe annuity to tbe widow independently ■of sucb proceeds. Tbe clause suggests opportunity for tbe heirs to receive tbe income of tbe property in specie, not to xeceive tbe corpus of tbe property either in tbe form in which it was left by tbe testator or any other. So, on tbe whole, tbe will plainly contemplates vesting of tbe legal title to tbe property in appellant and bis sister, with a power in trust in tbe executor as trustee giving him full control, including power to sell tbe property 'during tbe lifetime [397] of the widow subject to ber right and subject to the right of' the heirs, themselves, to have the income of the property as it was left, upon condition of their giving security for payment of the annuity. The fact that the testator did not, in terms, appoint the executor as trustee, but requested the county judge to do so, is-of little importance. Manifestly the handling of the property as the testator desired it should be administered would be impossible without a trustee, therefore he must have intended the request for 'the appointment of the executor in that regard, at the termination of the administration period, as-equivalent to an appointment by will. If any act on the part of the probate judge were necessary, it would be one which it would be his duty to perform the same as in case of the appointment of an executor in harmony with the testamentary suggestion. The request under the circumstances created what is called a precatory trust. When words of recommendation, request, or the like, contained in a will, must necessarily be followed in order to carry out the clear purpose of the testator, they are to be regarded as words of command or. direction. Knox v. Knox, 59 Wis. 172, 18 N. W. 155; Swarthout v. Swarthout, 111 Wis. 102, 86 N. W. 558. In a will a trust may be created by intention of the testator discovered by aid of judicial construction, as-well as by words taken in their literal sense. That follows necessarily from the primary rule for the treatment of wills,, that the intention of the testator manifested by his testamentary words must control. That rules this case in favor of the respondent. By the Court. — The judgment is affirmed.