Korn v. Friz

Dodge, J. The appellant does not contend against the condition of the limita that William shall die proposition that the gift over to grandchildren is so associated with the gift to the so a William that it evinces the intention of the testator not to g: ve an absolute fee to William unless the iion over to such grandchildren, namely, without issue, refers to such death during the lifetime of tin ¡ testator. Thip* however, he contends is- the true constructioi l, and invokes- the rule, long recognized, that such a phrase as i gift to one with limitation to others in ease of his death, or < leath without issue, ordinarily is to be mly to the condition of things prior and up to the death of tbe testator. Patton v. Ludington, 103 Wis. 629, 79 N. W. 1073. This rule,- however,' like all others ruction of wills, is but a rule of probability and yields readily to anything in words or context to indicate a different inf ention of the testator, which, as so often said, is the ultimate object of search and discovery in all attempts to construe wills. Benson v. Corbin, 145 N. Y. 351, 40 N. E. 11; In re Donges’s Estate, 103 Wis. 497, 79 N. W. — 434 — 786. In considering tbe present will, and especially tbe third paragraph thereof quoted in the statement of facts, we find at least three facts strongly indicating that the testator in mentioning the event of the death of his son William without issue, as to which he desired to provide, referred to a subsequent demise. First, it is to be noted that William himself was not to take immediately upon his father’s death, but was postponed to the death of the widow. Such fact is by the authorities considered significant of contemplation by the testator of the death of the remainderman at some time subsequent to his own. Page, Wills, § 676. Again, there is industriously added to this third paragraph a declaration of testator’s ■desire that his property shall, so far as he can control it, pass to those of Ms own blood. While it is not seriously contended that this either confers any title as an express devise, or would •serve to qualify any title clearly given, yet it at least bears upon the probability that the testator had in mind only the contingency of William’s death before his own. This generally expressed desire of persistency of title amongst his own ■descendants would be quite as much defeated by William’s death without issue after testator’s as before, for, upon William’s death, either during the life of the widow or after-wards, if either his remainder- or title became absolutely vested in fee, his wife would be his heir at law or he would be free to dispose of the property by will, or deed, to others than his father’s descendants. But more significant yet is the fact that the limitation over is to a class to be ascertained and determined, finally and irrevocably, at the moment of William’s death, and which might well consist of different persons at any moment of time. That class is “my grandchild or grandchildren who may be living at the time of the death of my son William.” It is inconceivable that in that sentence the mind of the testator was fixed upon a period prior to his own death. With several married children, and no apparent reason for preferring one grandchild to another, it is, of course, in the — 435 — highest degree improbable that he meant by this will to fix a date, perhaps years before his own death, at which the grandchildren who should share this large portion of his estate •should become determined to the exclusion of others who might be born later, and with the resulting right to children of any of the grandchildren living at William's death who might die between that date and the testator’s. These indicia are quite sufficient to convince us that wherever the expression “death of William without issue” was used by testator in this third paragraph he contemplated a death subsequent to his own quite as much as one before. Perhaps the most forcible argument against this conclusion is that the payment of $5,000 to Phillipina Steele by William is thereby rendered difficult, if not impossible, and that, presumptively, the testator, knowing of William's limited financial ability, could not have intended such a situation. ' It is doubtless true that, if William has a base fee determinable at any moment by his death, his estate is of such uncertain value as to render very doubtful whether he could borrow such a sum as $5,000 upon its security. To this it might be answered that, from a practical business point of view, William's mortgage upon the land covering an estate determinable only at his death, supplemented by a safe life insurance policy, might well provide reasonably perfect security, so that it nan hardly be said that payment of this legacy would be impossible, though there might still be doubt whether, for so uncertain a tenure, William would be willing to make the payment. But if it shall be determined, as it was by the trial court, that to Phillipina is given an absolute charge or lien upon this land, as land, and not alone upon William's estate therein, then there would be a situation where she would have a right absolute and assignable, to another; an assignment of which being added to a mortgage by William would give to any one furnishing the money to satisfy her legacy an unquestionable right to exhaust this $15,000 worth of land to the ex — 436 — tent necessary for bis reimbursement. Hence, if sncb charge was intended by tbe testator, be did not create a situation where payment was at all impossible. This naturally brings us to a consideration of tbe intent with reference to this legacy. Tbe will does not, in terms, provide that tbe same should be a charge, but uses tbe expression that tbe devise to ’William is upon tbe condition that be shall, within one year after tbe widow’s death, pay this amount to Phillipina. Tbe expression “upon condition,” if not otherwise qualified, might be construed as a condition precedent so that William could not take tbe land at all without making such payment, but since be was to take in possession immediately upon bis mother’s death, and was not required to make the payment until afterwards, namely, within a year, of course no condition precedent was intended. If, then, it is a condition at all, it is a condition subsequent; but there is no suggestion that bis title is to be divested upon breach of that condition, and no provision is made for any one else to take tbe land upon such breach. Hence, it seems necessary to deduce some other practical meaning and purpose from this language. We are persuaded that the trial court reached substantially the right conclusion on this subject. We think it plain that this $5,000 provision for the daughter — all that she receives under the will— was a very dominant purpose in the mind of the testator, and that his wishes, as evinced by the will, would not be satisfied unless she receives it; hence that he intended to declare his will that out of this farm, constituting nearly half of his estate, should be paid, in any event, $5,000 to the daughter Phillipina; that this purpose should not be defeated either through William’s inability to raise that amount of money upon his limited estate therein, or otherwise. To reach this result he must have intended to confer upon her the right to a lien or charge for this amount upon the whole title in these premises, and we agree with the trial court in holding that the will does so. Such lien or charge being — 437 — created, of course the right exists in her to invoke the powers of a court, whether of law or equity, to exert its proper machinery to render that lien effective in producing the money she is entitled to have. Courts of equity have many such methods within their power, prominent among which is the judicial sale, whereby any title or any portion found necessary may be transferred to a purchaser who will pay the amount of money requisite to satisfy the charge. We think it proper to declare, also, that, she being sui juris, her right to this legacy, with all its accompanying security, can be sold or transferred by her like any other property, so that any one, other than William, paying to her the $5,000 to which she is entitled may, with her co-operation, acquire all her rights in the land. We presume that the trial court intended to declare, by its judgment, a charge of this character, and no modification or change of the judgment, so construed, is necessary. It is suggested rather than contended that the condition upon which William’s estate is to terminate, namely, his death without issue, is already rendered impossible by the fact of issue born to him. Doubtless there are many cases in which courts have held that “death without issue” may mean death without issue born, but that construction has been excluded, except where clearly intended, by our statute (sec. 2046, Stats. 1898), which provides that “when a remainder .shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words ‘heirs’ or ‘issue’ shall be construed to mean heirs or issue living at the death of the person named as ancestor.” A guardian ad litem, was appointed for the protection of the interests of minors. He did not appear in this court further than to join by signature in the brief for the respondents, including the executor. He asks that compensation be allowed him, to be paid out of the estate. Upon this subject our views •have been so fully expressed in Tyson v. Richardson, 103 Wis. 897, 79 N. W. 439; Kronshage v. Varrell, 127 Wis. 597, 107 — 438 — N. W. 342; Stephenson v. Norris, ante, p. 242, 107 N. W. 343, that we do not need to enlarge upon them. The compensation to the guardian ad litem must he paid hy his wards and, to the extent of any property or estate belonging to them in this litigation, it may he made a charge thereon. These things can all be done hy the court appointing the guardian ad litem. Had his services upon the appeal been performed in the presence of this court so as to give it any advantage over the county court in knowledge of their character, we should probably fix the amount of reasonable compensation therefor, as was done in Stephenson v. Norris, supra. But in the present instance we have no such knowledge, and the county court can as well acquire the information necessary to fix such amount. By the Court. — Judgment affirmed; neither party to tax costs against another in this court; appellant to pay clerk’s fees.