Will of Dalrymple

The- following opinion was--filed January IT, 1921: RoseRb'erry, J. .The principal question ín 'thé easels The'-construction of-the 1-ahgúagé found in'paragraph-8 :of -the'will:''“in equal shares "to the then ' living ■ children-or 'lineal descendants-" by right' of - repfésentaíion -of -my -six "brother-sl 'to -witi David 'Dalrymple; 'M-árk';Dalrymplé,- "-Reü-'•ben" Dalrymple,' Clark - Dalrymple";' Oliver' -Dalrymple-, árid — 469 — Sheldon N. Dalrymple.” It is the contention of the executors and trustees and a considerable number of the legatees that if the words in this clause are considered in the order of their sequence and natural meaning the residue is to be divided into twenty-eight equal parts; that any other construction results in words being superfluous and in words being given a double meaning; that the construction contended for follows the rule that an heir at law is to be favored in construing a will. It is the contention of respondents that if the language be construed in the light of the surrounding facts and circumstances, it appears that it was the intention of the testator that equality should begin with- his brothers rather than with his nephews and nieces; that the reason for passing the living brothers was that they were then of advanced age; that if the language be construed as contended by the executors and trustees, the words “lineal descendants” could not apply because there could be no lineal descendants of “the then living children,” and that the words “in equal shares” mean that the respective classes shoúkl take in equal shares, and not that each of the nephews '-'and nieces'should-take in-equal shares. Reference is made : by both-parties tó\sec.~2275, Stats.■ . “Inheritance; 'or .-succession by right of representation, -takes place-when- the descendants of-any deceased" heir- take the ,s_ame- share.or. right in the estate of. another, person.-that their"páfeñt"would have taken if living; posthumous children are considered'as living at the death of their parents;” •A.' considerable number: of. cases have been' cited to'our .'.'attention. :. .We have before'us'the.opinion of the trial court, Avhich .has:feceived'"OUr -'careful 'consideration: . The problem ■■.presented: .is one difficult- of: solution .and no conclusion .can : he-reached .with suclvdemonstrable certainty as to eliminate .'all doubts. v ' .;... e.-.T-t-..is.conceded on ail- sides that'the intention-of the testator .-must"govern;' rWe.'are-aided' very.little' by the evidence as — 470 — to the surrounding facts and circumstances. The testator was a man of large wealth, of unusual business ability and sagacity, and his will was prepared by a lawyer long eminent in the practice of his profession in this state. If we consider the relative circumstances of the various families, we find that by the specific legacies the testator gave to the children of Mark, ten in number, an aggregate sum of $12,000; to the children of Reuben, three in number, the aggregate sum of $6,000; to the children of Clark, three in number, $9,500; to the children of Oliver, two in number, $10,000; to the children of Sheldon, five in number, $12,500; to the children of David, five in number, $2,500. While this summary is of little help, it does indicate that he did not intend to treat his nieces and nephews equally as between families. If the summary is of any value, it would seem to indicate that having provided generously for the children of Oliver, for instance, he would not, without some strong reason, give each of them five times as much as each of the children of Mark would receive if the will be construed as contended" for by respondents. But we do not regard this circumstance as controlling. Our conclusion is based rather upon the language of the will itself. The language in any view is more or less elliptical. We are of the opinion that it was the intention of the testator to distribute the residuary estate in equal shares among the then living children of the brothers named, the lineal descendants of any deceased child to take the.parent’s share by right of representation; that it was the intention of the testator that if any of his nieces and nephews should die before the distribution of his estate, leaving children,- such surviving children should take the share of --the-deceased parent. The testator’s brother • Oliver was born August 21, 1830, and was the youngest of -the surviving brothers who had children. At the time of the making of the' will Oliver was sixty-eight -years of age, Clark seventy-one, Reuben seventy, and the testator seventy-three. There was — 471 — every prospect that some of his brothers who had children would survive the testator. While, of course, there are exceptions, the words “by right of representation” are usually used in connection with the right of legatees to take through a deceased' ancestor. There being every prospect that there might be some of his brothers surviving and some not surviving, there being one such case at the time of the making of the will, the language used would not be apt to express the intent of the testator if he intended that his nephews and nieces should take by right of representation through the brothers, as some of the brothers would, in all probability, survive the testator. Taking the words of the testator in their natural sequence, giving the language used its ordinary meaning, we think it was the intention of the testator t that his estate should be divided per. capita among the then living children of his deceased brothers, the lineal descendants of any deceased child to take its parent's share by right of representation. There is nothing in the surrounding facts and circumstances sufficient to require a different construction. While the phrase “lineal descendants” might have been used so as to refer more clearly to the descendants of a deceased child, we think it much clearer that the phrase was intended to refer to a deceased child rather than to a deceased brother. Second and Third, the will provided: “At the expiration of ten (10) years after my decease or at such other time or times after said ten (10) years but prior to the expiration of twenty (20) years from my decease as my said executors and trustees or their successors in the trust shall deem expedient or advisable and for the best interest of my estate, I direct,” then follow words for distribution of his estate. We are of the opinion that by the use of the words “time or times” the testator intended to and did give to the executors and trustees a discretion as to the distribution of his estate within the period limited, with the right to make partial distribution thereof as the circumstances might — 472 — warrant. We are of the opinion, therefore, that as to the $80,000 the right thereto became vested upon the filing of the petition of the executors and trustees on September 20, 1917. As to that sum the administration was complete. Their discretion upon the filing of the petition had been exercised. It was thenceforth a matter for the court. Margaret Foss Tullís, a daughter of Minnie Belle Foss, one of the legatees, died November 19, 1917, intestate, leaving no issue, and leaving her surviving her husband, Ernest Tullís, and her sister, Helen G. Foss, and her brother, Richard D. Foss, and no other heirs at law or next of kin. That part of the estate ready for distribution having vested as of the 20th day of September, 1917, and Margaret Foss Tullís leaving ho issue, under the law of this state her right in the estate of the testator passed to her husband, Ernest Tullís, upon her death. In this connection, we may say that in our opinion the remainder of the estate will vest at the expiration of the twenty-year period or at such prior time or times as the executors and trustees may, in their discretion, fix for the distribution thereof. Fourth. The fund being distributed being a part of the residuary estate, and the right thereto having vested with the filing of the petition September 20, 1917, the legatees are entitled to the accumulations of the fund in the interim. The ordinary rule as to specific legacies bearing interest does not apply. By the Court. — Judgment reversed, and cause remanded with directions to the circuit court to enter judgment in accordance with this opinion. On March 8, 1921, a motion for a rehearing was denied, without costs, and the mandate modified to read as follows: By the Court. — Judgment reversed, with directions to the circuit court to enter judgment as indicated in the opinion of this court, each appellant to tax disbursements, including — 473 — printing, the appellants William Datrymple and Florence D. Ferguson to tax in addition clerlds fees; and it is ordered that all disbursements so taxed shall be paid out of the estate of William F. Dalrvmple, deceased.