Will of Elmore v. Elmore

There was also a brief by the respondent Eltinge Elmore, in pro. per. Vinje, J. The main question raised by the appeal is whether the children of the testator took an interest in the corpus of the trust estate that vested in them upon his death and which could be disposed of by them by will or otherwise, or whether the will created a trust estate to be held by the trustee until the death of the two life tenants and until their issue, if any, attained their majority and then to be divided among the children of the testator and their issue as directed by the will. We are favored with able and exhaustive briefs on both sides and numerous cases are called to our attention bearing upon the question presented. Rules for the construction of wills are also invoked in aid of our task. While authorities and rules are helpful, the main solvent in each case must be found in the will itself, interpreted in the light of the circumstances surrounding the testator. Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650; Will of Ehlers, 155 Wis. 46, 143 U. W. 1060. . In the present case it is shown that the testator looked upon his son-in-law Clason as a spendthrift, and presumably for that reason did not wish to leave his property so that he could reach it. It further appears that while he did not entertain such an opinion of his son-in-law Huntley, yet in order not to single out his daughter Eloretta alone for different treatment in his will he put the two sons in one class and the two daughters in another. It is evident that he desired to provide for the daughters as long as they lived by the payment to each of one half of the income of the trust estate. It is also evident that he considered that upon the termination of the trust estate there would or might be a corpus thereof to be disposed of, for the will provides “and in trust to pay to and convey to my said four (4) children share and share alike — the lawful issue of any deceased child taking by right of representation — all the rest, residue and remainder of said trust estate, including the income, interest and profits thereof, not hereinbefore disposed of.” If he had intended that upon his death his chil [271] dren would take a vested interest in the corpus of the trust ( estate, then there would he nothing 'for this residuary clause to act upon. If his children took a vested interest upon his death it would he theirs and pass by will to their legatees, or if they died intestate it would .pass hy operation of law to their heirs. In either event the testator’s will could not affect it. There would he nothing for the trustee to convey. But if he did not intend their interest to vest upon his death, then in the event that either or both of his daughters died without issue there would he a residuary estate upon which this clause of the will would operate, making it the duty of the trustee to convey as therein directed. In view of the reason there existed for not creating a vested interest in his daughter Eloretta, and in view of the direction to the trustee to pay over and convey, which direction would he meaningless if the interests vested, we have, reached the conclusion that the county court properly construed the will. Such construction harmonizes with the intent of the testator as shown hy the circumstances surrounding him and gives meaning and effect to every part of the will In coming to this conclusion we are not unmindful of the rule that the law favors an early vesting of estates. But this rule like all others must yield to the intent of the testator as disclosed by the whole will, giving effect if possible to every part thereof. Where such intent is discovered and when it is lawful and is consistent with the ordinary significance of the language used, and gives to each part thereof its natural meaning, force, and effect, it controls, and all rules of construction must yield to it. Will of Smith, ante, p. 207, 161 N. W. 749, and cases cited. It seems quite evident that the scheme of the testator was to give to each of his two sons one fourth of his property absolutely; to leave one half in trust for the use of his two daughters as long as they lived, and for the use of their issue, if any, till they arrived at the age of twenty-one years; [272] then if they left issue to such issue, and if not, to his children if living at the time of the distribution, and if not, to their issue by right of representation. He did not wish that part of his estate left in trust to go to strangers, but to his own kindred. But one trust was created and that was to continue till the death of both daughters and till their issue, if any, attained the age of twenty-one years. The duties of the trustee therefore continue as to the whole trust estate as found by the county court. By the Oourt. — Judgment reversed, and cause remanded with directions to affirm the judgment of the county court. Appellant to recover taxable costs in this court, and respondents to recover taxable .disbursements in this court, all to be paid out of the trust estate. Keewin and Eschweilee, JJ., dissent.