Becker v. Chester

• Decision Date: 19 June 1902
• Citation: 91 N.W. 87,115 Wis. 90
• Parties: BECKER ET AL. v. CHESTER ET AL.
• Court: Wisconsin Supreme Court

115 Wis. 90

91 N.W. 87

BECKER ET AL.

v.CHESTER ET AL.^a1

Supreme Court of Wisconsin.

June 19, 1902.

Syllabus by the Judge.

1. The jurisdiction of the county court in matters pertaining to the settlement of estates of deceased persons, by the judicial policy of the state grounded on a manifest legislative policy and by express legislative declaration as well, is exclusive, except where the county court cannot afford a remedy as adequate, complete, prompt, or efficient, as the circuit court.

2. The judgment of the circuit court on the question of the propriety of its taking jurisdiction of a controversy within the competency of the county court to determine will not be disturbed unless manifestly wrong, the rule being that the former must necessarily be permitted to exercise a broad discretion in deciding the question of its jurisdiction upon the facts of each particular case.

3. Mere economy of time alone is not sufficient to warrant the circuit court in taking jurisdiction of a controversy which is within the jurisdiction of the county court; but such element with circumstances rendering speedy settlement of the controversy of more than ordinary importance, is sufficient.

4. The primary purpose of the statute limiting the right to suspend the absolute power to alienate realty is not to prevent perpetuities, but to prevent unduly removing property from the field of business transactions. The prevention of perpetuities, so far as accomplished by such statute, is an incidental effect.

5. If realty be conveyed, by will or otherwise, to trustees upon an express trust, with absolute power to convert the same into personalty and hold the equivalent in that form for a period beyond the term for which the absolute power to alienate the realty could be suspended, the trust is valid if, upon such conversion being made, such equivalent will not be fettered by an invalid trust.

6. In the circumstances stated in the last paragraph, the fund derived from the realty is not fettered by an invalid trust, in any event, merely by reason of the statutory limitation upon the right to suspend the absolute power to alienate realty. Power being vested in the trustees to convey full title to the realty, satisfies the statute. Upon a conveyance being made, the question of whether the proceeds in the form of personal property are fettered by an invalid trust must be solved by some law governing perpetuities respecting personal property.

7. The power of alienation of realty is not suspended where there are living parties, however numerous, who have unitedly the entire ownership and may, presently, lawfully join in an absolute conveyance of the same.

8. If a testator, in a valid testamentary way, unmistakenly directs, either expressly or by necessary implication, that his realty shall be treated in the administration of his estate as personalty, or his personalty as realty, equity will deem that purpose impressed upon his estate immediately upon the taking effect of his will.

9. When the execution of the plan of a testator would be impossible or be attended with such difficulties that it would be unreasonable to suppose that such execution was contemplated by him without converting the realty into personalty or personalty into realty, a direction for such conversion will be deemed imperatively expressed in the will by necessary implication, to the same effect as if expressed therein in words.

10. Whether a will contains, by implication, a direction to convert property from one form into another is to be determined from the will itself, by ordinary rules for the judicial construction of such instruments.

11. A will which requires a large property, consisting partly of real estate and partly of personal property, to be divided into several equal parts or shares, and each part or share to be thereafter, for a long period of years, administered in trust as a separate property, subject to be divided and subdivided into many equal shares or parts before the final closing up of the trust,--the nature of the instrument, independently of the circumstances mentioned, being consistent with or indicating a purpose to have the entire estate treated as personal property,-- held to impliedly direct the estate to be so treated and to work an equitable conversion of the realty into personalty.

12. The common-law rule as to perpetuities respecting personal property is not in force in this state.

13. The 21-year term of the common-law rule respecting perpetuities is an absolute or gross term, not one referable to or subject to be limited by existing infancy.

14. A provision of an express trust of personal property, directing the subject of the trust to be delivered to the beneficiaries at the expiration of lives in being at the creation of the estate and the added common-law period thereafter, does not offend against the common rule of perpetuities if the vesting of the right to the property is not postponed by the terms of the trust to a time beyond such added period.

15. The common rule of perpetuities is satisfied by the vesting of the right to the estate within the limitations thereof, though the beneficiaries may not then be known.

16. Time required after the vesting of the right, for the ascertainment of the person or persons rightfully entitled to the property, does not militate against the validity of the trust in any event, as the rule against perpetuities does not deal with vested estates or interests.

17. A trust does not offend against section 2071, Rev. St. 1898, because of any obscurity which may readily be made certain by some definite test provided therein, when the time shall have arrived for executing the trust in regard to the matters involved.

Appeal from circuit court, Milwaukee county; Eugene S. Elliott, Judge.

Action by Sherburn M. Becker and another against Marion Merrill Chester and others. From the judgment plaintiffs and Marion M. Chester appeal. Affirmed.

Action to quiet a controversy as to the legal effect of the will of Sherburn S. Merrill, claimed by plaintiffs to be a suit in effect for the construction of such will. The complaint, by appropriate allegations, shows that all persons interested in the validity of that part of the will called in question are parties plaintiff or defendant. The following matters are also, in effect, alleged therein: The will was duly established April 21, 1885. Letters testamentary were then issued to the testator's widow, and D. C. Green, B. G. Lennox and David S. Wegg, all of whom are now in office except Mr. Lennox. The present executors have in their charge under the sixth clause of the will a fund, called the widow's fund, of $200,000, a special fund of $27,500 set aside by them to provide for certain legacies contained in the first five clauses of the will, certain real estate of which the testator died seised, also personal property of the value of $621,681.37 which was derived from real estate of which he died seised, except $78,975.95 which was derived from personal property of which he died possessed. All the persons named in the sixth clause of the will survived the testator and are now living except his daughter Sarah, who died testate in 1900, leaving as her only surviving issue Sherburn M. Becker. He and George C. Markham, the administrator of her estate with the will annexed, are the plaintiffs in this action. The executors, the testator's daughter Marion and her children, Sherburn M. Smith, William M. Chester and Norman M. Chester, the widow, Mary E. Merrill, in her own right, and the testator's sons Fred F. and Richard, constitute the defendants. The first five clauses of the will contain: (1) The usual provision for the payment of the testator's debts and funeral expenses; (2) a gift of his homestead and lands used in connection therewith to the widow for life; (3) a gift to her absolutely of certain personal property in use and for use in connection with the homestead; (4) a gift to her of $100,000; (5) a gift to her of the income upon $200,000, said sum to be set aside and invested by the executors at interest and the income thereof to be paid to her as directed in the will; (6) a direction to the executors to pay to the widow, from time to time, such additional sums of money as they might deem necessary to enable her to live as she had been accustomed to, such provisions for her being expressly made to take the place of dower; (7) a gift of certain real estate to his daughter Marion as the equivalent of a gift made during his lifetime to his daughter Sarah; (8) a direction to the executors to improve such real estate to the extent of $20,000; (9) a direction that the benefits provided for the widow in case she should not survive to take the same, and those provided for Marion in a like event and in case she did not survive the testator or leave issue him surviving, to go to the residue of the estate for distribution under the sixth clause of the will, worded as follows:

“All the rest, residue and remainder, of the property, real, personal and mixed of whatsoever kind and wheresoever situate of which I may die seised or possessed, or in any manner entitled unto, including the reversion in my aforesaid homestead and fifteen acres, and the reversion in the aforesaid two hundred thousand dollars, I give, devise and bequeath, in trust, unto my executors, with full power at all times, to lease, or sell and convey the same, or any part thereof, and to convert real estate into personal property or personal property into real estate, as to them may seem best for the interest of all persons concerned, and to make investments in interest-bearing securities, and it is my will that my said executors shall have full power to so manage the property while in their charge, as to make it yield a safe and reasonable income. My estate herein given to my said executors shall be finally disposed of by them as herein directed.

First.--My said executors shall, as soon as...