Baker v. McLeod's Estate

• Decision Date: 05 May 1891
• Citation: 79 Wis. 534,48 N.W. 657
• Parties: BAKER v. MCLEOD'S ESTATE.
• Court: Wisconsin Supreme Court

79 Wis. 534

48 N.W. 657

BAKER

v.MCLEOD'S ESTATE.

Supreme Court of Wisconsin.

May 5, 1891.

Appeal from circuit court, Brown county; SAMUEL D. HASTINGS, Judge.

It appears from the record that February 6, 1871, Alexander McLeod died at the village of West De Pere, in Brown county, testate, leaving a will executed January 30, 1871, and which was admitted to probate March 6, 1871; that said Alexander McLeod, in and by said will, gave, bequeathed, and devised all of his estate, both real and personal, to M. De Witt Peak, of Green Bay, as executor thereby appointed, and to his executor or executors, or such other trustee or trustees as might otherwise be lawfully appointed, in trust to pay debts and expenses, and execute said will, in the manner therein stated, and with power of sale and reinvestment; that it was therein ordered and directed, in effect, that, as soon as “the reasonable necessities” of his child therein named would permit, and within one year after the death of said testator, there should be paid to Miss Sarah Ritchie, who since the death of his wife had had the principal care of his said child, the sum of $500; that said will contained the following provisions, to-wit: “And I do further order and direct that the said M. De Witt Peak, my said executor in trust, his executor or executors, or such other trustee or trustees as aforesaid, at all times, until Annie May McLeod, who is my only child, shall attain the full age of twenty-one years, shall remain in the possession of all the residue and remainder of my estate not required for payment of debts and expenses, or of the aforesaid legacy of five hundred dollars, or in possession of the proceeds thereof, and in receipt and possession of all the rents, profits, and income thereof, and shall from time to time pay and apply the whole of such rents, profits, and income, or such part thereof, or such part of the whole estate, as he or they shall deem for the advantage of my child, for and towards the maintenance and education of her, the said Annie May McLeod. And I further order, direct, and declare that all my aforesaid estate, or the proceeds thereof, with the rents, profits, and income thereof, so far as the same shall not have been paid or applied as aforesaid, shall be paid and transferred to my said child, the said Annie May McLeod, as and when she shall attain the age of twenty-one years. But, if the said Annie May McLeod shall die under the age of twenty-one years, then all my aforesaid estate, or proceeds thereof, with the rents, profits, and income thereof, so far as not then paid, applied, or required for the purposes aforesaid, shall, immediately after her death, be paid, applied, and disposed of in the manner following, that is to say: First. The further sum of two thousand dollars shall be paid to the said Sarah Ritchie, if she shall then be still living, but, if the said Sarah Ritchie die before and during the minority of said child, the said sum of two thousand dollars shall sink into and form a part of my residuary estate. Secondly. The sum of eight thousand dollars” was, in effect, therein provided to be paid to the trustees of the First Presbyterian Society of Green Bay, in trust, nevertheless, for the purposes therein mentioned; that any residue of his said estate should, in the event stated, be retained by said executor, executors, or trustees, to his or their own use, in addition to all such compensation as should be allowed by law; that said will also contained the following provisions: “I hereby commit the tuition, nurture, and custody of the person of my said child, Annie May McLeod, for such time as she shall continue unmarried and under the age of twenty-one years, unto the said Miss Sarah Ritchie, hereby nominating and appointing her, the said Sarah Ritchie, guardian of said child for the purpose of such tuition, nurture, and custody: provided, however, that if the said Sarah Ritchie shall die before the expiration of the aforesaid term of her guardianship, then, from and after the death of said Sarah Ritchie, I commit such tuition, nurture, and custody for the residue of such term to the said M. De Witt Peak, whom, in such case, I nominate and appoint such guardian, as aforesaid, for the residue of such term, in addition to all the powers, trusts, and duties otherwise conferred or imposed upon him. I do hereby nominate and appoint the said M. De Witt Peak to be the guardian of said Annie May McLeod, for and during the period and term of her remaining unmarried and under age, in respect to the care, management, and disposition of such property and estate of said child as shall come or descend to her, by means of insurance upon my life, or otherwise than by means of this, my will; hereby declaring that the accountability of the said Peak in his capacity of guardian, in respect to property, shall extend only to such property and estate as last aforesaid;” that said deceased left him surviving a daughter, Annie May McLeod, who married one W. A. Leddy, and on May 14, 1888, gave birth to a child, the said George McLeod Leddy; that June 27, 1888, the said Annie McLeod died, under the age of 21 years; that April 10, 1889, the county court for Brown county rendered judgment in said matter, by which it was adjudged that the residue of the estate of said Alexander McLeod be assigned as follows: To Miss Sarah Ritchie, $1,253.81; to the First Presbyterian Society of Green Bay, in trust for the purposes named in the will, $5,015.28; that June 8, 1889, the said plaintiff, as such administrator and guardian, appealed from that judgment to the circuit court for Brown county; that at the close of the trial of said appeal in the circuit court, and on March 17, 1890, the circuit court found, as matters of fact, in addition to the facts stated, that the bequest in said will to said Sarah Ritchie of $2,000, and to the First Presbyterian Society of Green Bay of $8,000, were general bequests, and must abate proportionately, as the moneys in the hands of the administrator were insufficient to pay them in full; that said society was duly organized according to law, and had a duly-organized Sundayschool and library; and, as questions of law, that the will was valid; that the bequests to Sarah Ritchie and to the First Presbyterian Society of Green Bay were valid, lawful bequests, and that the proper disposition of the estate in the hands of the administrator was made by the county court, and that the judgment of that court should be affirmed; that judgment was thereupon entered accordingly, affirming the judgment of the county court, and remitting the same to that court for further proceedings. From that judgment, and the whole thereof, the plaintiff as such administrator and guardian, brings this appeal.Wigman & Martin, for appellant.

Vroman & Sale, for respondent.

CASSODAY, J., ( after stating the facts as above.)

The testator's wife died before he did. At the time of his death he was about 26 years of age. Annie May was his only child, and at the time of his death she must have been less than four years of age. He executed his will only a week before he died, and apparently with the expectation of death's near approach. His anxiety for his little girl must, under the circumstances, have been very great. His tender regard for her is manifest in the will. He left $500 to Miss Ritchie, who had the principal care of her after his wife's death. He committed the tuition, nurture, and custody of the person of Annie to Miss Ritchie, who for those purposes was thereby appointed her guardian for such time as she should continue unmarried and under the age of 21 years. He provided that in case Miss Ritchie died before the expiration of that period, then that her tuition, nurture, and custody should be committed, for the remainder of said term, to his executor named. He necessarily put his estate into the hands of a trustee, with power of sale and reinvestment to manage and control, until Annie should, in the eyes of the law, become capable of taking charge of it. He expressly provided that, after the payment of his debts, expenses, and the legacy mentioned, his trustee, named, or his successor, should, until Annie attained the full age of 21 years, “remain in the possession of all the residue and remainder” of his estate, and the proceeds, and “all the rents, profits, and income thereof,” and should “from time to time pay and apply the whole of such rents, profits, and income, or such part thereof, or such part of the whole estate,” as he or they should deem for the advantage of his child, for and towards the maintenance...