Will of Olson v. Olson

Vinje, J. Appellants urge that the widow took a fee, and that upon her death, intestate, the property descended to her heirs; that the second paragraph of the will- is too vague to change to a mere life estate the definite language of the first paragraph which devises a fee, and that the conditions attached, to the effect that the sons should assist the mother in the management of the farm, render the whole paragraph void because no one can tell whether they have been performed. The first contention was negatived by this [411] court in Knox v. Knox, 59 Wis. 172, 18 N. W. 155. There the will read: “I give, devise, and bequeath unto my wife, AÍ., her heirs and assigns forever, all my real and personal estate, . . . and hereby request that at her death she will divide equally, . . . between my sons and daughters [naming t|iem], all the proceeds of my said property, real and personal, . . . hereby bequeathed;” and it was held that the widow took a life estate in the property coupled with a trust as to the remainder in favor of the children. In that case there was merely a request that at her death the wife divide the remainder. In the case at bar the testator himself divides-it, leaving no discretion to the wife or to any one else. In Jones v. Jones, 66 Wis. 310, 28 N. W. 177, the rule in. the Knox Case was reaffirmed. It has also been, either directly or indirectly, recognized in the following cases: Derse v. Derse, 103 Wis. 113, 79 N. W. 44; Stuart’s Will, 115 Wis. 294, 91 N. W. 688; Auer v. Brown, 121 Wis. 115, 98 N. W. 966; Schneider v. Schneider, 124 Wis. 111, 102 N. W. 232; Perkinson v. Clarke, 135 Wis. 584, 116 N. W. 229; and Hovely v. Herrick, 152 Wis. 11, 139 N. W. 384. Where the intention of the testator is clear, and where, in order to carry out such intention, it is necessary to follow precatory words, then such words are not advisory but mandatory. Knox v. Knox, 59 Wis. 172, 18 N. W. 155; Swarthout v. Swarthout, 111 Wis. 102, 86 N. W. 558; Wolbert v. Beard, 128 Wis. 391, 107 N. W. 663. In Tabor v. Tabor, 85 Wis. 313, 55 N. W. 702, and in Conlin v. Sowards, 129 Wis. 320, 109 N. W. 91, the precatory words were held advisory merely. In the present case it seems clear that it was the intention of the testator that what remained of the property after the wife’s death should be divided among his sons upon the payment of the legacies provided for in the will and the performance of the other conditions. Such being the intention, the wife was given a life estate coupled with the power to dispose of the corpus of the property if [412] necessary for her maintenance, with the remainder over to the sons named. We see nothing uncertain or vague in the second paragraph; nor is the condition that the sons should assist the mother in the management of the farm incapable of ascertainment. Like any other fact, if in dispute, it can be determined by the court. It was so determined in this case, the court finding that the condition had been complied with. The evidence sustains such finding. Claim is made that the granddaughter, Olga Marie Buro, was unintentionally omitted from the will. Both the county and circuit courts found to the contrary. The evidence on the subject is very meager, but what there is seems to sustain the findings made. We shall not attempt to review it here. By the Court. — Judgment affirmed.