Will of Prasser

Winsnow, C. T. The question upon the appeal of the executors and trustees is whether the estate vested in the children living at the time of the testator’s death, or whether there will be no vesting of the estate until the end of the trust period, and then only in the children who shall then survive. In determining the nature of an estate created by will, the will itself is to be first consulted and afterwards the statute. The operations should not be reversed. The will is to be first construed because the first and controlling question is, What [95] sort of an estate did the testator intend to carve ont? and this can only be determined by construction of the will. After the testator’s intention has thus been determined, the statute is to he consulted in order to ascertain how far the estate intended to he created hy the testator is affected, limited, or inhibited by the law. It was said in Smith v. Smith, 116 Wis. 510, 93 N. W. 452, that: “The primary canon in the construction of wills is that the intent is to be gathered from the whole will, rather than from the phraseology of any particular isolated clause. It is also well established that in doubtful cases the law leans in favor of an absolute, rather than a defeasible, estate, and of a vested, rather than a contingent, interest, and that, while the general rule is that a gift will be deemed contingent when it is found only in a direction to divide at a future time, this is subordinate to the primary rule that the intent, to be collected from the whole will, must prevail.” It was further said in the case of Ohse v. Miller, 137 Wis. 474, 119 H. W. 93: “The gift will be held to vest, if such appears to have been the testator’s intention, even though it be expressed in a mere direction to pay. . . . The real inquiry is whether the element of time is annexed to the gift itself as a condition precedent, or merely to the payment of it.” These principles are well settled, nor are they in any respect doubted, but rather recognized, in the case of In re Moran’s Will, 118 Wis. 177, 96 N. W. 367, which is much relied on by appellants. Applying them to the present case, we have no difficulty in concluding that the testator intended the interests of his children to vest at the time of his death, subject only to the life estate of the widow and the ten-year trust.The words of the devise are words of a present grant, not of mere direction for division at a future date. The net annual income is to be divided among the children during the entire period of the trust, showing the intention that the beneficial enjoyment should begin as soon as the life estate should be [96] concluded, and the devise is “unto all my children.” These features are all indicative of an intention to vest a present interest in each child at his death, rather than to suspend the-vesting until the end of the trust period. Passing to the question of Helen Prasser s right to dower,, it-is to he remembered that at the time of her husband’s death the life estate had ended, and only the existence of the ten-year trust prevented the husband from entering into the actual possession of his interest, which, as we have seen, was already vested. Our statute gives a widow dower in all lands of which her husband was “seised of an estate of inheritance” at any time during coverture. By “seisin” is meant a fixed vested right of enjoyment of the estate either immediately or at the termination of an intermediate estate. 1 Washb. Eeal Prop. (6th ed.) § 116. At common law there was no dower right' in a reversion or remainder after a freehold estate, unless the freehold'estate terminated during the life of the husband but there was dower in a reversion or remainder after an estate for years. 1 Washb. Eeal Prop. (6th ed.) § 365. At common law, also, there was no dower in an-equitable estate. The husband must have had legal title. Id. § 374. Jn England and in many of the United States this latter rule’ has been changed by statute, and dower given out of equitable estates. Id. § 375. Our statute, however, says nothing of equitable estates, and doubtless is to be regarded as simply giving dower out of legal estates, as was the case at common law. See. 2159, Stats. (1898) ; 1 Scribner, Dower (2d ed.) ch. 19, § 20 ei seq., p. 400. In the present case the husband’s interest had vested at the testator’s death, the life estate of the widow of the testator had ended during the husband’s life, and the trust, limited to the term of ten years, alone intervened before the husband’s right of possession would become perfect. Under these circumstances, was the husband during his life seised of an estate of inheritance? Sec. 2086, Stats. (1898), provides that [97] in ease of a valid express trust the whole estate shall vest in the trustees "except as herein otherwise provided” and that the cestui que trust shall take no interest in the land, hut may enforce the trust. Sec. 2087 provides, however, that: “The preceding section shall not prevent any person creating a trust from declaring to whom the lands to which the trust relates shall belong in the event of the failure or determination of the trust, nor shall it prevent him from granting or devising such lands subject to the execution of the trust; and every such grantee shall have a legal estate in the lands as against all persons except the trustees and those lawfully claiming under them.” Erom the two sections taken together it must result that when a trust in lands is created, and the lands at the same time granted or devised subject to the exécution of the trust, the trustee takes only such interest as the purposes of the trust require, or, as frequently expressed, only such interest as is necessary to feed the trust, and the grantee takes the entire title as against the world in general, and' as against the trustee he takes the beneficial equitable interest, subject only to the execution of the trust according to its terms. Baker v. Estate of McLeod, 79 Wis. 534, 48 N. W. 657. Such was Theodore Prasser’s interest here. It was vested, subject only to the execution of the trust, and was a “legal estate” as against all persons except the trustees, whose term was for years only. Why should not his widow have dower in this legal estate ? Wehave discovered no good reason for a negative answer to this question, and hence conclude that she should have been awarded dower in her husband’s vested interest in the real property of the estate. So long as the trust exists, this means, of course, only a one-third interest in the net annual rents of the real estate after the purposes of the trust have been fully performed. • By the Gourt. — Judgment modified so as to provide that the trustees shall pay to Helen Prasser annually one third of the net rents, profits, and income derived from Theodore [98] Prasser’s one-seventh interest in the real property of the estate, and the balance to the general guardian of Clarence Prosser, and, as so modified, the judgment is affirmed on both appeals: one hill of costs to he taxed by respondents and paid out of the estate.'