Traphagen v. Paddock

Doerfler, J. The first issue presented involves the construction of the will. Nelsona L. Traphagen having ex — 549 — pressed a desire that the trust as to her shall be finally settled, the question arises whether two thirds of the stock in the insurance company shall be directed to be delivered to her in specie, or whether the entire stock be ordered sold and the proceeds thereof divided as follows, to wit: two thirds to Nelsona L. Traphagen, and one third to the trustees for the benefit of the widow and of Paul Paddock. In the construction of wills the principal canon to be observed is to ascertain the intention of the testator from a review and consideration of the entire will. Smith v. Smith, 116 Wis. 570, 93 N. W. 452; Will of Cramer, 183 Wis. 525, 198 N. W. 386. The organization and the operation of the business affairs of the Time Insurance Company, from the time of its inception up to the time of the death of the deceased, constituted the life work of Jerome Orlando Paddock, deceased. During all this time he not only had the controlling stock interest in the company, but was also its president and general manager and a member of the board of directors. He shaped the policy of this company, and during the long period of time in which he was engaged in this business he had without dispute succeeded in building up and maintaining a large and highly successful institution. The deceased left him surviving his widow, Anna P. Paddock, and four children by a former marriage, namely, Nelsona L. Traphagen, Paul E. Paddock, J. O. Paddock, Jr., and B. B. Paddock. With the exception of a few years, one Emil Giljohann, who had been insurance commissioner of the state of Wisconsin for a period of four years, was associated with the deceased in the conduct of the business of the insurance company, up to the time of his death, since 1903. Giljohann was the secretary and treasurer of the company and also a director. At the time of his death the deceased owned 1,730 shares of the insurance company stock, the latter company having a capital stock consisting of 2,500 sharés of the par value of $10 a share. Nelsona L. Trap-hagen owned 500 shares, and the balance of the stock was — 550 — held by various parties m small amounts. At the time of the hearing the widow, Anna P. Paddock, was seventy-six years of age. C. G. Traphagen, one of the executors and trustees, was a son-in-law of the deceased and the husband of Nelsona L. Traphagen. He had occupied for over thirty years an important position at Duluth as manager of the Northwestern branch of the R. G. Dun Company, a commercial agency, and for upwards of five years prior to the death of the deceased he had been a director of the insurance company. In the light of these surrounding facts and circumstances we will endeavor to arrive at the true intent of the testator as expressed in his will. Nothing that appears from the record would indicate that' the deceased and his wife had not lived happily and in perfect harmony. If any discord or unpleasantness existed in the family it was with reference to two of the sons of the deceased, for whom he made no provision in the will and as to whom he directed that they shall in no manner participate in the conduct of the business. True, he gives his widow the income during her life of but one third of the estate, with remainder over to the son Paul, while he gives to Nelsona, if she survive the five-year period referred to in the will, two thirds of his entire estate. This evidently, on the face of it, has a tendency to create the impression that he has not adequately made provision for his widow. The widow, however, at the time of the death of the deceased, was seventy years of age, and at the time of the hearing had arrived at seventy-six years of age. The widow had a claim upon his bounty at least to the extent of a reasonable provision in her behalf that would meet her necessities during the remainder of her life.- The capital stock of the insurance company, having a par value of $25,000 according to the appraisal made in the matter of the estate, shows an actual value in excess of $65,000. Besides his stock in the insurance company there was other property worth approximately $7,500. During the five-year period after the death of the deceased, — 551 — large and substantial dividends were earned and paid by the insurance company, of which the widow received one third. This demonstrates clearly that the deceased, in bequeathing to his widow the income from one third of his estate during the remainder of her life, reasonably and adequately provided for her wants and needs. While the son Paul did not receive as generous treatment by the will as his sister Nelsona, yet after the death of his stepmother the remainder of the one third was bequeathed to him. The deceased also realized the possibility of the death of Nelsona during the five-year period, and, evidently being desirous that his property shall remain in his family, he provided that in the happening of that event such two-thirds interest shall pass to the son Paul. So that no complaint can properly be made on the part of Paul that he was not fairly considered by the deceased in the distribution of his bounty. Nelsona, however, was the favorite member of his family, and in the distribution of his property she received primary consideration. That he placed great faith and confidence in her is shown by the provision in the will that upon the death of either of the executors or trustees Nelsona shall have the power of naming the successor. Her husband, C. G. Trap-hagen, a man in the prime of life, with a great many years of experience in a prominent commercial enterprise, and who had been for upwards of five years prior to the death of the deceased a director of the insurance company, was the one whom the deceased evidently had in mind as his successor in the conduct of the business. In any event the trustees exercised their power under the will to name and appoint him as such successor. Giljohann, a prominent insurance man, who had served two terms as insurance commissioner of the state and who had been associated with the deceased for over fifteen years as one of the principal officers of the company, was selected and appointed by him as one of the executors and trustees of the will. — 552 — The succession and continuance of the business of the insurance company was at all times near and dear to the deceased’s heart. Therefore he concluded, at the time he executed the will in 1912, to continue the business not only up to the time of his death but for a definite and specified term of five years thereafter, and in and by his will express directions were given to maintain the estate intact during this period. Nelsona, his daughter, at the time of the death of the deceased was the owner in her own right of 500 shares of the stock of the company. He evidently realized that by giving to his widow and his son Paul one third of his estate and to Nelsona the remaining two thirds (she owning at that time 500 shares of the stock in her own right), it would give her controlling interest of the affairs of the company. It is not unlikely, but on the contrary is highly probable, that the deceased concluded that the actual conduct of the business after his death, for a period of five years, would demonstrate the ability of the trustees to conduct the business successfully. Bearing all these considerations in mind, a strong inference follows that it was the cardinal thought of the deceased that his life work should not be disposed of by sale or under the hammer, but should inure to the benefit of those whom he deemed worthy thereof in his testamentary disposition. Giving these considerations proper weight, nevertheless it may be argued that some doubt still exists as to whether it was the intention of the deceased that the two thirds of the estate bequeathed to Nelsona shall be assigned to her in specie. It is plausibly argued by counsel for the widow and the son Paul that if the will be so construed as to give to Nelsona her two-thirds interest in specie, and to require the other one third to be sold and held in trust for the benefit of the widow, Nelsona would obtain a controlling interest in the company, and that, inasmuch as the other one third represents a minority interest, such interest would be at the mercy of the majority stock. While we hesitate in a belief that — 553 — Nelsona would take undue advantage of the situation as portrayed, we must admit, notwithstanding the family relation existing, that such a possibility might transpire, and were it to occur, such grave injustice might be done to the deceased’s life mate as to deprive her of her reasonable means of subsistence. As will hereafter appear, it is our opinion that the will should not be so construed. However, we have arrived at the definite conclusion that at the end of the five-year period, Nelsona having definitely elected not to continue the trust as to her interests, she is entitled to an assignment of two thirds of the shares of the insurance company stock in specie. The third from the last paragraph in the second provision of the will is as follows: “At the end of said period of five years my said executors and trustees shallv-Jay over, assign, bargain, sell, and convey by proper instruments in writing and deliver to my said daughter, Nelsona L. Traphagen, two-thirds part of my entire estate.” Note specifically the language used in the paragraph quoted. The executors are first required to “pay over” two thirds of the estate. The word “pay,” in its commonly accepted meaning, denotes payment in money. Part of the estate actually consists of money, and undoubtedly the testator had in mind that at the end of the five-year period some moneys would accumulate which would be the proper subject of division. The next term used is “assign.” This is a technical term, used to convey personal property of all kinds, and inasmuch as the testator was "the owner only of personal property in the form of stock, and inasmuch as he directed his executors to assign two thirds of the estate to Nelsona, his evident intention by the use of this term was to make ample provision so that the proper proportion of the stock designated in the will shall be transférred to Nelsona by an assignment. “The words ‘bargain and sale’ have a settled legal meaning, and import a sale which vests the — 554 — property in the buyer.” 7 Corp. Jur. 921, 922. It is true that the deceased owned no real estate at the time of his death; nor does it appear from the record that he owned any real estate when the will was made. However, he realized the possibility of acquiring real estate before his death, and in order to meet every possible contingency he included in this testamentary paragraph the provision whereby two thirds thereof might be conveyed by proper deeds of conveyance to his daughter. We will now consider the wording of the second from the last paragraph of the second provision of the will. This paragraph is as follows: “In the event that my said daughter, Nelsona L. Trap-hag en, is not living at the end of said period of five years, then my said executors and trustees shall pay over, assign, bargain, sell, and convey said two-thirds part of my said estate to my son, Paul Paddock, his heirs, executors, administrators, or assigns.” Here again the testator uses the terms “pay over,” “assign,” “bargain, sell, and convey said two-thirds,” etc. Here he clearly manifests a disposition with respect to two thirds of his estate in the event that his daughter Nelsona shall not survive the five-year period in a manner similar to that provided in the paragraph under which Nelsona is the beneficiary. The last paragraph of provision number 2 reads as follows: “The remaining one-third part of my estate shall remain in the hands of my executors and trustees, hereinafter named, and they shall keep the same properly invested and pay the income thereof to my beloved wife, Anna P. Paddock, in quarterly instalments, during the term of her natural life, and at her death said one-third part of my estate is hereby given, devised, and bequeathed unto my son, Paul Paddock, his heirs, executors, or assigns.” In marked contrast to the paragraphs above quoted, the testator saw fit to omit the use of the expressions “pay — 555 — over,” “assign,” “bargain,” “sell and convey,” etc. In place thereof he directs that the remaining one third shall remain in the hands of the execútors and trustees and that they shall keep the same properly invested and pay the income thereof to the wife, etc. By this paragraph the testator intended one of two things: either that the stock shall be kept and held by the trustees for the benefit of the widow and of the son Paul, or that it shall be sold and the proceeds invested in proper trust securities and the income thereof paid to the widow. Here it must be borne in mind that the trust in all events was to continue as to the interest of the widow for the period of her natural life. The stock, at the end of the period of five years, was in the hands of the trustees in specie. In express language he directs this one-third interest of the estate to remain in the hands of the executors and trustees. This does not indicate a desire on the testator’s part to have the stock sold, but to keep it intact; and when he uses the expression “properly invested,” having manifested his confidence in the business of the insurance company, we infer that a retention of the stock by the trustees was clearly his purpose. Here again we must assume that the testator did not intend that his widow shall be at the mercy of his daughter, who was to become the controlling stockholder of the corporation, but, on the contrary, in view of the successful operation of the business by the deceased and the earning of large dividends upon the stock, the proceeds from the investment in the stock would very likely secure to the widow a larger and more adequate return than an investment in trust securities. After the death of the widow the testator provides that said one-third part of his estate is devised and bequeathed to the son Paul, his heirs, executors, or assigns. Here again the testator manifests plainly the possibility, after the making of the will, of his acquiring real estate, and he therefore uses the technical legal term applicable to the transfer of real estate by will by the use of the word “devise.” So that — 556 — after the death of the widow the one-third interest becomes the absolute property of Paul, to be by him dealt with in accordance with his wishes. Nelsona having elected to receive her share of the estate, we construe the will to mean that she is entitled to her share in specie. It is-further held that the will contemplates the ’retention of the other one third for the benefit of the widow and of the son Paul, as above indicated. The1 court further found that, with consent of the beneficiaries, the trust as to the entire estate shall continue, and if during such extended period Nelsona L. Trap hag en shall die, her interest shall go to her brother Paul. A casual reading of the will will disclose that the court was in error in so holding. The two-thirds part of the estate bequeathed to Nelsona is dependent only upon her surviving the five-year period. At the hearing the'trustees and Nelsona were sworn as witnesses. The trustees testified to the correctness of the accounts. An opportunity was offered the respondents to inquire as to the subject of the salaries of the officers and employees of the insurance company. A number of copies of the reports of the insurance company to the insurance commissioner were submitted to respondents’ counsel and were offered in evidence. No charge was made that the managing trustee had been guilty of any fraud or lack of good faith, or that any of the moneys of the insurance company had been embezzled or diverted into illegal channels. It may be questionable whether the respondents and the county court, in this proceeding, have a right to question the good faith of the trustees, and particularly the one who became the manager of the company, or whether the county court has jurisdiction to order the detailed statements and trial balances directed by the court to be furnished. It must be admitted that the widow and Paul, being the equitable owners, of one third of the stock held by the estate, were not remediless, and that in a proper proceeding in a court of general juris — 557 — diction they could have asserted their rights, if the managing trustee had been guilty of any fraud or illegal acts. This is a matter in which the corporation itself was primarily concerned, and which would, if fraud or illegality had been perpetrated, have affected its interests. However, assuming that the county court had authority and power to call the managing trustee to account by reason of the provision in the will whereby the trustees were to select a successor of the deceased in the business, no showing whatever for such accounting was made. No fraud, embezzlement, or illegal diversion of funds was either alleged or shown. To require, under such circumstances, the trustees to furnish an itemized, detailed account of the affairs of a large insurance company, covering a long period of years, is clearly an abuse of discretion, and we so hold. By the Court. — The judgment of the lower court- is reversed, and the cause is remanded with directions for further proceedings in accordance with this opinion. Jones, J., dissents.