Will of Smith

The following opinion was filed January 10, 1922: Esciiweiler, J. While the will of a testator, when not violating statutory or judicial prohibitions, should be the law of his will, the one here presents difficulties in arriving at any satisfactory conclusion as to what were the mental conclusions of the testatrix, at the time she executed the document, as to' her wishes for the future disposition of her property. At the time she made her will Mrs. Smith possessed but a relatively small amount of property, principally bank stock and certain real estate in Appleton. Some of the real estate — 500 — was sold by her, and by far the greater part of her estate came to her by inheritance from her father a number of years after the making of the will and about two years preceding her own death, and is mainly personal property. Before discussion of the principal questions involved it is necessary to decide the contention urged on behalf of the three children of Mrs. Smith, the appellants here, that the real estate she acquired by inheritance from her father, being acquired subsequent to the making of the will, did not pass thereby and should be disposed of as intestate property. This raises the question whether it manifestly appears by the will, pursuant to sec. 2279, Stats., that it was her intention that her after-acquired real property should pass by the provisions of the will. The will makes specific devises and bequests of the property she had at the time of the making of the will. It then groups, for the purpose of distribution, all the rest and residue of her property, real, personal, or mixed, in possession or expectancy. The term expectancy is of significance and weight in this respect. Its use in the will distinguishes property she might thereafter acquire from property then in her possession. By the language used she expressed what must be considered in law an intention to dispose of subsequently acquired personal property, and by the same expression she also included real property. There is nothing -restricting the term expectancy to personal property merely. It is clear, therefore, that the will does show on its face an intention of the testatrix to dispose thereby of her after-acquired real estate, and the trial court was correct in so holding. The two main questions presented are: first, what is the nature of the property interest that is given to her children; second, whether there are sufficient directions in the will to require the appointment of a trustee and the creation of a trust to administer her residuary property, either personal or real, or both. — 501 — The appellants contend that under these provisions it must be held that the children received absolute title to both the real and personal property included in the residuary clauses, or, in case such contention cannot be sustained, that then it should be held that they take a present title to such property with the right to the possession thereof, the income therefrom, and possibly the use of some or all of the principal thereof during their lives, with possible conditions subsequent thereto attached. By the first sentence of the residuary clause the testatrix gives, devises, and bequeaths to her daughter and the two sons, share and share alike, all the rest and residue of her property. If the clause had ended there it would have ended the present difficulty. It would have given to the three children complete and absolute title to her personal property. It would have given the same complete and absolute title to the real property that she herself had at the time of her death, for evidently under sec. 2278, Stats., such would be the effect of the will, it not clearly appearing therefrom that she intended to convey any lesser estate. Were such her intention, then the children and not she would have the absolute and uncontrollable right, so far as any wish on her part was concerned, tO' dispose of the respective shares which they would receive under her will at the time of her death, or title thereto would pass from them by the statute regulating distribution of estates, they dying intestate after her decease. She indicates, however, plainly that she desires a voice and choice in the distribution of her property under conditions and contingencies which cannot arise until after her death. The situation in that respect here is somewhat similar to that discussed in the case of Will of Elmore, 165 Wis. 266, 271, 162 N. W. 438. She has in mind as possible beneficiaries of her property at least three distinct classes, namely: first, her own children specifically designated by name; second, thé children — 502 — born to any or all of her designated three children; and third., the spouse, if any, surviving the death without issue of any of her designated three children. To construe the will as contended for by appellants, as giving to them, the first of such classes, the entire title and' interest in and to her- residuary property, would necessarily set aside and disregard all of the language that she uses in the will with reference to those other classes of possible beneficiaries. Furthermore, it must be noted that to only one of the three of the above mentioned classes is it declared that title to any of her property shall go absolutely (thereby evidently including the idea of complete and full title, possession, and control), and that one is the second of such classes, namely, the child or children of her. own children. If it can be said that she indicates anywhere in the clauses of her will now under consideration an intention to favor any particular one of the three classes over the others, it would be the second of those classes rather than the class made up of her three children. And it should be noted that this second class refers to a class who may come into existence either before her own death or. subsequent thereto, so that the children of a child predeceasing the testatrix form a class specific and definite at the time of the death of the testatrix and then step absolutely and completely into the share meant for their parent, and children, born or unborn at the time of the testatrix’s death, by the death of a child of the testatrix subsequent to her own death step in, at the time of such subsequent death, to a definite and fixed one-third share of the residuary property, and which one-third share became fixed and definite at the time of Mrs. Smith’s death. Under these considerations we are satisfied that we must say that there appears on the face of this instrument an intention on her part to limit the interest and estate given to each of her three children to a life estate merely. Knox v. Knox, 59 Wis. 172, 18 N. W. 155; Allen v. Boomer, 82 — 503 — Wis. 364, 371, 52 N. W. 426; Swarthout v. Swarthout, 111 Wis. 102, 111, 86 N. W. 558; Meinert v. Roeglin, 169 Wis. 531, 532, 173 N. W. 224. These considerations, as well as the further feature that in all her directions as to what is to be done upon the death of any of her children either before her own death or'after the term is invariably used as of such child’s share rather than any remaining portion of any such share, compel us to hold that it was not the intention of the testatrix, so far as it can be spelled out from the will itself, that the children should have the right to consume for their own purposes any of the principal of such respective shares. Schneider v. Schneider, 124 Wis. 111, 102 N. W. 232; Meyer v. Garthwaite, 92 Wis. 571, 575, 66 N. W. 704; Jones v. Jones, 66 Wis. 310, 317, 28 N. W. 177. The omission of any declaration by the testatrix that her children shall have the right to use or consume or have power and control over any portion of such shares, must be construed as significant and important, in view of the weight attached to the use of such terms in cases like Otjen v. Frohbach, 148 Wis. 301, 309, 312, 134 N. W. 832, and cases there cited; Will of Olson, 165 Wis. 409, 411, 162 N. W. 429. The trial court also held that in the event either of the children of Mrs. Smith should now die leaving no surviving issue but a surviving spouse, such surviving spouse should receive absolutely the then present interest of such deceased child. There is no express language in the will expressly so declaring such as is found with reference to any surviving issue of such child, and while it may seem rather a strained construction to hold that such surviving spouse was intended to take to the exclusion of any surviving child or children of Mrs. Smith and to the exclusion of the ultimate-remainder-men in the absence of express language to that effect, nevertheless we must adopt the view of the trial court in that regard. To hold otherwise would be to ignore the evident purpose of the testatrix to create such a possible class of — 504 — beneficiaries and to whom she expressly refers" several times in the residuary clauses of her will. If they were not intended to be the objects of her bounty there was no reason for their being mentioned at all in the will. The reference to them, if given any other, effect, would apparently suspend, during the life of such surviving spouse of a child dying without issue, any vesting anywhere of the estate and interest of such child of Mrs. Smith. We think, therefore, it is a proper construction of this will to hold as did the trial court that in the event of any death hereafter occurring to any child of Mrs. Smith who shall leave no issue but a surviving spouse, such surviving spouse shall then step into absolute possession and control of the share that such child of Mrs. Smith shall have a life estate in at the time of the death of such child. 'Having'held that the three living children of the testatrix each takes but a life estate under the residuary clause and are not entitled to the possession or use of any part of the corpus of such property, the conclusion is necessarily' arrived at that to effectuate the purposes indicated in the residuary clauses in question as indicated above, some method must be provided by the court having jurisdiction over its administration that the corpus be preserved in the interests of the ultimate remaindermen, and that during such necessary period it be properly conserved and the income thereof paid to those holding the, respective life estates therein. There is no express language in the will indicating that the appointment of a trustee or the creation of a trust was purposed by the testatrix when the will was drawn and executed, nor is there to be found any direction as to the manner in which such suggested trust should be carried on, nor is any express language used indicating an intention on her part that the real estate she had at the time of her death, other than the Appleton property, was to be converted into personal property and the'proceeds thereof administered — 505 — with the balance of the personal property. Manifestly such suggested omitted provisions are each and all material and important elements in the creation and. conducting of any trust. Otjen v. Frohbach, 148 Wis. 301, 308, 134 N. W. 832. Their omission, however, so far as any express language is concerned, does not necessarily deprive the court administering the estate of the power to declare such a trust created and to appoint a trustee, nor warrant avoiding the responsibility so properly assumed, as we now hold, by the trial court in so declaring. To carry out what has now been declared to be the purposes of the will there is no other proper method known to the administration of the estates of deceased persons whereby such declared purposes of the testator can be effectually carried out. This, therefore, makes it the duty and gives the power to the court to do that which was done by the court below. It is suggested that, there being real estate of considerable value included in the residuary clauses, to declare a trust as to such real estate for the purposes now held to have been the intention of the testatrix with regard to her residuary property would be to offend against the provisions of the statute, sec. 2041, because the successive estates for life created were to three rather than two children of the testatrix in being at the time her will took effect. • Under the rule declared in this state it has long been held that where, as here, a very substantial part of the property involved is personal property, the validity of a trust for which is in nowise impaired by any rule against perpetuities, it is proper to consider if there be evident in the will a broad general direction, to be read by implication therefrom when necessary as in this particular instance, that the property is to be conserved as a whole. Particularly is that so where, as here, a,very considerable portion of the real estate involved is unimproved property and the great bulk of the — 506 — property included in the residuary clauses is personal property. From all this it is legally and imperatively apparent that tO' effectually carry out the now declared purpose of the testatrix the real estate should be converted into personal property and the entire amount of the property then administered as such. This doctrine has been settled as the law of this state in the. case of Becker v. Chester, 115 Wis. 90, 117, 91 N. W. 87, 650, and subsequent cases such as Wolbert v. Beard, 128 Wis. 391, 395, 107 N. W. 663; Swarthout v. Swarthout, 111 Wis. 102, 111, 86 N. W. 558; Danforth v. Oshkosh, 119 Wis. 262, 275, 97 N. W. 258; Benner v. Mauer, 133 Wis. 325, 329, 113 N. W. 663; Williams v. Williams, 135 Wis. 60, 67, 115 N. W. 342; Foote v. Foote, 159 Wis. 179, 184, 149 N. W. 738, and it needs no further discussion. The disposition we have now made of this matter renders unnecessary discussion of any of the other matters presented and argued. • By the Court. — Judgment affirmed.