Colman v. First Nat. Bank At Orlando (In re Colman's Will)

• Decision Date: 01 July 1948
• Parties: In re COLMAN'S WILL. COLMAN et al. v. FIRST NAT. BANK AT ORLANDO et al.
• Court: Wisconsin Supreme Court

253 Wis. 91

33 N.W.2d 237

In re COLMAN'S WILL.

COLMAN et al.

v.FIRST NAT. BANK AT ORLANDO et al.

Supreme Court of Wisconsin.

July 1, 1948.

Appeal from a judgment of the County Court of La Crosse County; R. V. Ahlstrom, Judge.

Proceedings in the matter of the will of Lucius C. Colman, deceased, wherein the First National Bank at Orlando, executor, filed a petition for construction of the will against Joseph H. Colman and others. From the judgment, Joseph H. Colman and others appeal.-[By Editorial Staff.]

Affirmed.

In proceedings in the county court judgment was entered construing and interpreting the will of Lucius C. Colman, which that court had admitted to probate on February 3, 1926. An appeal from the judgment was taken by the children of Edward Colman, a deceased brother of the testator. Lines, Spooner & Quarles and James T. Guy, all of Milwaukee (Joseph H. Colman, of Minneapolis, Minn., of counsel), for appellants.

Miller, Mack & Fairchild, and J. G. Hardgrove, all of Milwaukee (Maguire, Voorhis & Wells, of Orlando, Fla., of counsel), for respondent First Nat. Bank at Orlando, Ex'r.

Johns, Roraff & Coleman, of La Crosse, for respondent La Crosse Trust Co.

Douglass Van Dyke, of Milwaukee, for respondent Joseph Fairbanks as Trustee.

C. L. Baldwin, of La Crosse, for Harry Lane Colman and others.

T. H. Skemp, of La Crosse, for Peter Colman Clark and others.

FRITZ, Justice.

The following findings of fact by the trial court are undisputed. Lucius C. Colman (hereinafter called the ‘testator’) was a resident of La Crosse county, and died there December 22, 1925. His will, executed on March 7, 1906, was admitted to probate there on February 3, 1926. The will provides that the testator's property be held in trust with directions for the payment of the income to the testator's widow, Genevra Colman, for life, and that, ‘After the death of my said wife, said trust is to be terminated and I give, devise and bequeath all my estate, both real and personal, in equal portions to my sister, Julia L. Osborne and my brothers, Harry L. Colman and Edward L. Colman, for their sole use and benefit. And in case of the death of my said sister or either of my said brothers before the death of my said wife, the share that he or she would have taken shall be divided equally between his or her surviving children, by right of representation.’

The testator's wife, Genevra Colman, survived him and presently is still alive at the age of 89 years. His brother Harry L. Colman and his sister Julia L. Osborne died before the testator; and testator's brother Edward L. Colman died intestate January 3, 1926.

Testator's sister Julia L. Osborne was survived by three children, viz.: Group A Laura O. Austin, who died January 8, 1941, without issue, left a will placing her property in trust, with Joseph Fairbanks as trustee; Edna O. Follett, who died November 5, 1939, without issue, left a will devising half of her estate to her sister Laura O. Austin, and half to her brother Rockwell C. Osborne; Rockwell C. Osborne, who died April 5, 1946, left a will bequeathing his property in trust to his wife for life, with remainder over to 14 persons who are children of the children of testator's brothers, Edward L. and Harry L. Colman.

Testator's brother Harry L. Colman was survived by three children, viz.: Group B Charles E. Colman, who died testate May 13, 1939, left his property in trust for his widow and four children; Charlotte C. Bigler, who is living and has one child, John C. Bigler; Julia C. Smith, who died August 27, 1935, and is survived by two children.

Testator's brother Edward L. Colman, who survived the testator but died intestate January 3, 1926, was survived by his wife and four children, viz.: Group C Ruth C. Clark, Anna Colman, Joseph H. Colman and Helen C. Murphy, who are all living and have children, with the exception of Anna Colman.

After the hearing the county court concluded: (1) That the petition requesting the construction was not premature, and that the present determination of the ultimate distribution of the corpus of the trust was necessary. (2) That, subject to the trust estate left in favor of Genevra Colman, the entire principal or corpus of the estate of Lucius C. Colman was by his will devised to and vested in the following named legatees at the times and in the proportions and estates following: That one-third of the remainder of the estate vested indefeasibly in the three children of Julia L. Osborne, at the time of the death of Lucius C. Colman, being a one-ninth part in Laura O. Austin, a one-ninth part in Edna O. Follett, and a one-ninth part in Rockwell C. Osborne; That a one-third part of said remainder vested indefeasibly in the three children of Harry L. Colman at the time of the death of Lucius C. Colman, being a one-ninth part in Charles E. Colman, a one-ninth part in Charlotte C. Bigler, and a one-ninth part in Julia C. Smith; That at the time of the death of Lucius C. Colman a one-third part of said remainder vested in Edward L. Colman, but by reason of his failure to survive the widow, Genevra Colman, such one-third portion was divested and thereupon became vested upon the death of said Edward L. Colman in his four surviving children, being: a one-twelfth portion in Ruth C. Clark, a one-twelfth portion in Anna Colman, a one-twelfth portion in Joseph H. Colman and a one-twelfth portion in Helen C. Murphy. That the court does not find it necessary to define the subsequent descents applicable to the resulting shares of any vested remaindermen above named, who are now deceased, such estates being subject to devise by will or laws of descent in appropriate domiciliary jurisdictions.

The determination of this case depends upon the proper interpretation of the above quoted residuary clause in Lucius Colman's will which immediately follows the provision by which he gave, devised and bequeathed all his property in trust with directions for the payment of the income thereof to his wife, Genevra Colman, for life. By the provisions in the first and dominant sentence in said residuary clause the testator provided the direct or primary gifts. And the provisions in the second sentence provide for distinct gifts over, which are secondary; and which became operative,-in the case of the brother and sister who prodeceased the testator,-as of the date of death of the testator to substitute for such predeceased brother and sister his or her surviving children, by right of representation, as a new set of legatees and devisees (hereinafter called ‘legatees'). Under said first sentence, if it stood alone, equal portions of the remainder of the estate would vest at the time of the death of the testator in Edward L. Colman and in the issue of Julia L. Osborne, and the issue of Harry L. Colman; and the language ‘I give, devise and bequeath’, as used in the residuary clause, is the appropriate language for an absolute gift of a one-third portion of said remainder; and speaks as of the time of the death of the testator, although the remainder cannot take effect in enjoyment until the termination of the trust upon the death of the widow. In re Will of Reimers, 242 Wis. 233, 7 N.W.2d 857;In re Estate of Downs, 243 Wis. 303, 9 N.W.2d 822;In re Estate of Wadleigh, 250 Wis. 284, 26 N.W.2d 667.

By the language in the second sentence of the residuary clause that, ‘And in case of the death of my said sister or either of my said brothers before the death of my said wife, the share that he or she would have taken shall be divided equally between his or her surviving children, by right of representation’, the said interests of the testator's brothers and sister was made subject to be divested on the condition subsequent that if prior to the death of testator's wife one of said legatees died leaving surviving children, such legatee's interest...