Patton v. Ludington

• Decision Date: 05 September 1899
• Citation: 79 N.W. 1073,103 Wis. 629
• Parties: PATTON ET AL. v. LUDINGTON ET AL.
• Court: Wisconsin Supreme Court

103 Wis. 629

79 N.W. 1073

PATTON ET AL.

v.LUDINGTON ET AL.

Supreme Court of Wisconsin.

Sept. 5, 1899.

Appeal from circuit court, Milwaukee county; Daniel H. Johnson, Judge.

Action by James E. Patton and others, executors and trustees, against Emma Blessing Ludington and others, for the construction of a will. From the judgment both plaintiffs and defendant Emma Blessing Ludington appeal. Reversed.

June 17, 1891, Ex-Gov. Harrison Ludington died, leaving a will executed December 27, 1887, and which was admitted to probate September 2, 1891. This is an action brought by the executors and trustees against all other parties interested, to construe that will. The will contains, among other things, in effect, the following provisions: “I give to my wife, Emeline M., the use of my homestead now occupied by me, so long as she shall desire to occupy the same, the taxes thereon to be paid out of my estate; also, the use of all the household furniture, horses, carriages, and appointments connected therewith, so long as she shall occupy such homestead. In case she removes therefrom, she may have and take for her use such articles of household furniture as she may select, excepting only the paintings known as the ‘Marine Scene,’ ‘Landscape,’ and the ‘Picture of Cattle,’ and the silver that belonged in the family prior to our marriage. In case my wife shall remove from such homestead, my executors are authorized and directed to sell and convey the same so soon as they reasonably may, and until then to rent the same. In case such premises should be so sold during the life of my wife, I direct my executors to pay to her, and I bequeath to her, from the proceeds thereof, $5,000. I also give to my wife, and direct my executors to pay to her, during her life, from the annual income of my estate, $3,000 per annum, payable to her quarterly in advance. I also give and bequeath to my wife the further sum of $10,000. The foregoing provisions in favor of my wife are in lieu of all dower and right of dower and of all interest in my estate upon her part, and in full of all claims and demands against the same of every nature and kind soever. These provisions for my wife have been made after consultation with her, and are such as we both consider to be equitable and just. I give and bequeath to my executors and to their successors in trust the thirteen acres of land in Wauwatosa known as the ‘Brown Tract,’ in trust, however, to receive the rents, issues, and profits thereof until Harrison Ludington, the eldest son of Frederick Ludington, shall attain the age of 21 years, when I give and devise the same to him, and direct my executors to convey the same to him absolutely, and to account to him for all income received by them therefrom, but to permit his father, Frederick Ludington, to farm and use the land, if he shall so desire, during his son's minority, upon his paying the taxes thereon during such time. In case said Harrison Ludington should die before attaining the age of 21 years, then I give and devise such land, and direct my executors to convey the same, to his surviving brothers and sisters; and, failing such survivorship, I give and devise the same, and direct my executors to convey the same, to his father, Frederick Ludington. Except as otherwise designated herein, I give, devise, and bequeath unto my executors and to their successors in trust all my estate, real, personal, and mixed, in trust, however, to invest and keep invested the same, and to receive the rents, issues, and profits thereof, and, during the lifetime of my wife, out of such rents, issues, and profits, to first pay to my wife the annuity provided, and secondly to pay and distribute the remainder of such annual rents, issues, and profits semiannually among all my children equally, share and share alike, the issue of any deceased child taking by representation the share thereof which his, her, or their parent would have taken if living, and upon the death of my wife, except as to the particular property hereinbefore mentioned, to divide my estate equally among all my children, share and share alike, the issue of any deceased child of mine to take by representation the share which his, her, or their parent would have taken if living. And, for the purposes of the trust hereby reposed, my executors and trustees and their successors in trust are authorized and empowered, except as hereinafter limited, to sell and convey any and all personal property and any and all real estate of which I may die possessed or seised, and convert the same into money, and invest and keep invested the same for the purposes of the trust herein specified, and generally for such purposes, and in their discretion, to convert realty into personalty and personalty into realty. I, however, direct that my stock in the Ludington, Wells & Van Schaick Company, in the Lumbermen's Mining Company, and in the Menominee River Manufacturing Company shall be held by my executors and trustees, and not disposed of, during the life of my wife and my youngest child surviving at my death, except that if they or either of them should survive the first day of April, 1893, then such stocks may be sold by my executors and trustees, if they shall so deem advisable. My executors and trustees shall not have the power or authority to sell or convey (except by way of mortgage for the purpose of rebuilding) my property known as lot 6 in block 2 in the Seventh ward, and lots 1 and 2 in block 58 in the Fourth ward, of Milwaukee, during the lives of my wife and of my youngest child surviving at my death, but shall receive the rents, issues, and profits thereof, and distribute and divide the income thereof as hereinbefore provided with respect to the general income of my estate; and they are authorized and empowered to mortgage said property, or any part thereof, should they deem it advisable so to do. If my wife and my youngest child surviving at my death, or either of them, shall survive April 1, 1908, in such case my executors and trustees and their successors in trust are authorized and empowered to sell and convey said premises, or any of them, and convert said property into money. All of my property, except the specific bequests, devises, and legacies herein provided, shall, at the death of my wife, as to all thereof except the specific real and personal property required to be retained until the happening of certain mentioned contingencies, and as to such excepted property upon the happening of such contingencies, be divided equally among all my children, share and share alike, the issue of any deceased child to take by representation the share or part his, her, or their parent would have taken if living. In such division no advancement or gift to any of my children prior to January 1, 1883, is to be considered or taken into account, but all sums advanced and charged by me to either of my children since January 1, 1883, are to be deemed advancements to such child, and to be taken into account in such distribution. In case of any partial distribution of my estate among my children, my executors and trustees are authorized to deduct any advancement to any child, in installments as they may deem just, so that none of them shall be deprived of a fair annual income for his or her support. I hereby nominate and appoint Anthony G. Van Schaick and James E. Patton executors and trustees of this my last will and testament. * * * In case of the death or resignation of my executors or trustees, or either of them, I authorize my surviving children to fill any vacancy from time to time, as often as it shall occur, by the choice and appointment of a successor in the manner therein designated. Failing such choice and appointment for sixty days, the judge of the probate court is to appoint a suitable person or persons.” At the time of the death of the testator, he left, him surviving, his widow, Emeline M., and six children by a former wife, to wit, Frederick, who had a wife and three children, including Harrison Ludington; Sarah E., wife of the plaintiff James E. Patton, who had four children and two grandchildren; Ellen L., who had a husband and four children; Clara, who had a husband and five children; Frances L., who had a husband and four children; and Harrison Ludington, Jr., who was at the time unmarried, but who subsequently married the defendant Emma Blessing Ludington, and died November 15, 1895, without issue, leaving, him surviving, his widow, as his sole heir at law, and also leaving a will, which was duly admitted to probate, and by which he gave, devised, and bequeathed all his property, real and personal, to his widow, Emma Blessing Ludington, and appointed her the executrix thereof.

Upon the trial of the issues made by the complaint and the separate answer of the defendant Emma Blessing Ludington, the court found, in addition to the facts admitted, as matters of fact, that the estate of Harrison Ludington, deceased, was upwards of half a million dollars in value, and consisted of both real and personal property,--about one half being real and the other half personal property. And as conclusions of law the court found, in effect: (1) That in and by the will the testator devised and bequeathed to his trustees, after the payment of the specific legacies in the will provided for, all his estate, real, personal, and mixed, and that such trustees thereupon became vested with the absolute title thereto, and to the whole thereof; (2) that no title, right, or interest in any part of such estate so devised and bequeathed to such trustees was by the will vested in any of the children of the testator him surviving, and that the interest of such children is and was contingent upon their surviving the time or times of distribution provided for in the will; (3) that in case any of his children died before any period or periods of distribution should arrive as therein provided, without leaving issue, his...