Wilmerton v. Wilmerton

• Decision Date: 04 January 1910
• Docket Number: 1,609.
• Citation: 176 F. 896
• Parties: WILMERTON v. WILMERTON et al.
• Court: U.S. Court of Appeals — Seventh Circuit

176 F. 896

WILMERTON v. WILMERTON et al.

No. 1,609.

United States Court of Appeals, Seventh Circuit.

January 4, 1910

The bill was by appellant, a citizen of Iowa, against appellees citizens of Illinois, the appellee, William W. Wilmerton being made defendant both in his own right and as executor of the will of William Wilmerton, deceased; and was to recover complainant's one-half share in $12,442.03, together with interest thereon, said to be due to appellant under the will of William Wilmerton, deceased, and wrongfully withheld by appellee, William W. Wilmerton, as executor of such will. A demurrer to the bill having been sustained, the bill was dismissed for want of equity.

The salient facts, stated in the bill, are as follows: On January 12, 1904, William Wilmerton, deceased, executed his will wherein there was bequeathed to the appellee, Louisa Little and to appellant, Frank Wilmerton, daughter and son respectively of the testator, 'notes and moneys to the amount of $75,000, as per contract to be managed by said bank (The Central Trust and Savings Bank of Rock Island) for the benefit of my estate. ' The remainder of the estate, after three other specific bequests, went to William W. Wilmerton, appellee, amounting, after the deduction of the other bequests, to considerably more than $75,000 in value. The trust, recited in the contract with the bank, was as follows:

'The said party of the first part (the bank), shall collect and receive the interest and principal of the said notes and securities at maturity, pay the income thereof to said party of the second part William Wilmerton, on demand, and reinvest the principal thereof as speedily as it is able to, after the receipt of the same, and upon the death of the said party of the second part, to account for all said property to the estate of the said party of the second part. The said party of the first part, in and about the said collecting of interest, principal, and re-investment, to be held to the exercise of the same degree of care as it would of its own property. * * *'

At the date this contract was entered into, William Wilmerton was about eighty years of age, and at the date the will was executed was a little past eighty-one years of age; but on both dates was of sound and disposing mind and memory. Subsequently Wilmerton became insane, and on the twelfth day of June, 1906, one Thomas J. Medill was duly appointed conservator of his estate, and forthwith took possession and control of the estate, except so much thereof as was, at the time, in the care, custody and control of the trustee above mentioned. Wilmerton, up to the time of his death, November 26th, 1907, did not recover his reason.

S. S. Gregory, for appellant.

H. A. Weld, for appellees.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

GROSSCUP Circuit Judge (after stating the facts as above), delivered the opinion:

The argument of appellee William W. Wilmerton is, that under the law of Illinois, the conservator succeeded to the right of the beneficiary in the trust agreement 'to demand' the income accumulating and that had accumulated upon the securities embodied in the trust; that such demand having been complied with, the income thus paid over became at once segregated from the trust fund-- was no longer a part of the trust fund in fact, but became apart of the general property of the conservator's ward; from which it follows, that the will, acting as of the testator's death, a date subsequent to this act of segregation, acted only, so far as the bequest to appellant and Louisa W. Little went, upon the securities remaining; the test of the testator's intention being, not what, aside from the will, he may be shown to have said or done in relation to the specific bequest involved, but what property was, in fact, included in and acted upon by the specific bequest at the date of his death.

We accept this as the true test of the testator's intention. It does not follow, however, that intention is thereby shown in the will that the power of the testator to take down 'on demand' the income of the securities mentioned in the specific bequest, should go over to his conservator in case of his subsequent mental incapacity.

No such intention is affirmatively shown in the will. Nor does it follow that such power of the testator to take down the income goes by operation of law to the conservator, to the end that the special fund, acted upon in the specific bequest, shall be by that amount diminished. That, indeed, is the real question in this case.

Counsel for appellee have brought to our attention two cases, one an English, the other a Pennsylvania case, the former, at least supporting his contention, viz: In Re Freer, 22 L. R. Chancery Division, 622, and Hoke v. Herman, 21 Pa. 301. The Freer Case was that of a testator who bequeathed 'all his first preference bonds' in a certain railroad to one of his sons, the residuary estate to a son and daughter. Subsequently, but before the testator's death, and while he was of unsound mind, a conservator, under an order of the Lord Justices,...