Evans' Estate, In re

• Decision Date: 07 January 1957
• Citation: 80 N.W.2d 408,274 Wis. 459
• Parties: In re ESTATE of John C. EVANS, Deceased. FIRST NATIONAL BANK OF MADISON, Trustee, Appellant, v. W. G. EVENSON, Gdn. ad litem, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 408

80 N.W.2d 408

274 Wis. 459

In re ESTATE of John C. EVANS, Deceased.

FIRST NATIONAL BANK OF MADISON, Trustee, Appellant, v. W. G. EVENSON, Gdn. ad litem, et al., Respondents.

Supreme Court of Wisconsin.

Jan. 7, 1957.

Rehearing Denied March 5, 1957.

See 81 N.W.2d 489.

There was a petition by the First National Bank of Madison, trustee of the estate of John C. Evans, deceased, to construe a final judgment and will in the matter of the estate of John C. Evans, deceased; also praying for instructions as to the rights, if any, of any grandchildren born after the entry of the final judgment and not specifically mentioned therein, and for such and other further order as may be proper.

Upon the hearing before the county judge of Sauk county, the following findings and judgment were made:

'Findings of Fact

'1. That on January 15th, 1940, the deceased, who was a resident of Sauk County, Wisconsin, died testate.

'2. That the heirs at law of the deceased were: Anna Evans, his widow; Margaret Perry, Edward Evans and Alice Pope, their children, each of whom was of age.

'3. That at the time of his death, the deceased had the following grandchildren: Maxine A. Perry and Barbara Perry, Children of Margaret Perry; Evan F. Evans and Thomas E. Evans, children of Edward Evans; and Keith A. Pope and Wayne E. Pope, children of Alice Pope Draper; that each of the said grandchildren was a minor, four of whom were born prior to the execution of the will, and the other two after the execution of the will and before the testator's death.

'4. That on January 27th, 1940, Anna Evans petitioned to probate the will of the deceased.

'5. That on January 29th, 1940, the court directed that such petition be heard on February 21st, 1940, and directed publication of notice of hearing in the Weekly Home News, a newspaper published in Spring Green, Wisconsin.

'6. That on February 27th, 1940, after publication of notice of hearing, the court entered an order appointing a guardian ad litem; that such order, after reciting that the six above named grandchildren are minors, appointed Raymond Kasiska, an attorney of said court, as guardian ad litem.

"For said minors and for all unknown minors and incompetents for the sole purpose of appearing for them and taking care of their interests in the proceedings in said matter.'

'The court finds that said Raymond Kasiska was not appointed as guardian ad litem for any unborn minors, and that no guardian ad litem was appointed for unborn minors during the probate of the estate, and that the minors hereinafter named in paragraph 18 of these findings were not represented during the original probate.

'7. That on February 27th, 1940, the Will of the deceased was admitted to probate; that Hill, Miller and Hill and Raymond Kasiska, guardian ad litem, appeared at such hearing; and a certificate of probate was entered.

'8. That the said will, so far as is herein material, contained the following provisions:

"Third, I give, devise and bequeath to my grandchildren the sum of Fifty Thousand Dollars ($50,000), said sum to be placed in trust by my executor in a trust company or a bank exercising trust powers, the income from the principal being allowed to accumulate until said grandchildren shall respectively become of age. After each grandchild becomes of age he is to receive the income which accumulates on his share, said income to be paid to him annually until he reaches the age of thirty years. After each grandchild reaches the age of thirty years he is to be paid his full share of the principal sum of this bequest together with the interest which has accumulated thereon.

"Seventh, I give, devise and bequeath to my children, Mrs. Margaret Perry, Edward Evans and Mrs. Alice Pope, all the remainder of my estate, share and share alike.'

'9. That on March 10, 1940, letters testamentary were issued to H. L. Gray.

'10. That on August 2, 1941, the executor petitioned for final settlement

'11. That on August 6, 1941, the court entered an order for hearing and directed publication of notice to be made in the Weekly Home News.

'12. That on September 2, 1941, after publication of notice of such hearing, the petition for final settlement was heard. Present at such hearing were: Hill, Miller and Hill, attorneys for the executor, Raymond Kasiska guardian ad litem and the public administrator.

'13. That in the inheritance tax determination, each of the six grandchildren of the deceased survived him was taxed on one-sixth of the $50,000 trust created under Article Third of said will.

'14. That on April 17, 1942, Final Judgment was entered in the Estate of the deceased; that in said Final Judgment the Court found that the deceased was survived by his widow, Anna Evans, and three children, Margaret Perry, Edward Evans and Alice Draper, formerly Alice Pope, and that the deceased was survived by the following grandchildren: Maxine A. Perry Barbara A. Perry, Evan F. Evans, Thomas E. Evans, Keith A. Pope and Wayne E. Pope; that the said Final Judgment assigned the $50,000 trust and directed that it be administered as follows:

"3. To Maxine A. Perry, Barbara A. Perry, Evan F. Evans, Thomas E. Evans, Keith A. Pope and Wayne E. Pope, grandchildren, the sum of Fifty Thousand ($50,000.00), less such amounts as have heretofore been paid by said executor for inheritance tax upon the distributive shares of each such grandchild, which deductions are as follows:

Maxine A. Perry, the sum of $176.00

Barbara A. Perry, the sum of $176.00

Evan F. Evans, the sum of $174.00

Thomas E. Evans, the sum of $174.00

Keith A. Pope, the sum of $173.00

Wayne E. Pope, the sum of $173.00

the same to be held in trust by The First National Bank of Madiscon, Wisconsin, subject to the terms and conditions as set forth in the will of said deceased as follows:

"That the income shall be allowed to accumulate until said grandchildren shall respectively become of legal age.

"That when each such grandchild becomes of legal age he shall receive his proportionate share of such accumulated income, and thereafter all income on his proportionate share shall be paid to him annually until he reaches the age of thirty years.

"That when each such grandchild becomes thirty years of age he shall be paid his full share of the principal of said trust, together with all interest accumulated thereon.'

'15. That on April 22nd, 1942, Letters of Trust were issued to The First National Bank of Madison, Madison, Wisconsin.

'16. That Maxine A. Perry, now Maxine Perry Tesia, one of the grandchildren of the deceased, became twenty-one years of age on the 26th day of March, 1946; that commencing as of such date the said Trustee paid to her and thereafter to her and to the others of said six grandchildren as they successively attained such age, interest as directed in the Final Judgment.

'17. That on the 26th day of March, 1955, Maxine Perry Tesia attained the age of thirty years; that the Trustee thereafter paid to her one-sixth of the trust estate, and under date of the 31st day of May, 1955, this Court discharged the Trustee on account of her interest in the trust.

'18. That three children have been born to Alice Pope, now Alice Pope Draper, since the death of the deceased, such children being Walter J. Draper (born November 1, 1945), Margaret Anne Draper (born February 13, 1951), and Susan Kay Draper (born June 30, 1952); that each of the said children is a minor.

'19. That on August 9th, 1955, The First National Bank of Madison, Trustee, having been advised of the birth of such Draper children and being concerned as to whether they might be beneficiaries, petitioned the Court to construe the Final Judgment and Will of the deceased.

'20. That under date of August 15th, 1955, the Court entered an order for hearing of such petition for construction, directed that notice thereof be published in the Weekly Home News and be mailed to the guardians ad litem and to all persons interested in such construction.

'21. That on August 16th, 1955, the Court appointed W. G. Evenson an attorney of this Court, guardian ad litem for Walter J. Draper, Margaret Anne Draper and Susan Kay Draper, and also appointed Harlan W. Kelley, an attorney of this Court, as guardian ad litem for all other minors, other than said three latter persons; that at such time Thomas E. Evans, one of the grandchildren alive at the time of the death of the deceased, was still a minor.

'22. That on September 13th, 1955, after completion of such publication and mailing, a hearing on such construction was held; that appearances at such hearing were: R. H. Marshall, Vice President of The First National Bank of Madison, Trustee; Hill, Miller ahd Hill, attorneys for Trustee; and W. G. Evenson and Harlan W. Kelley, guardians ad litem.

'23. The Court finds that Article Third of the Will and that portion of the Final Judgment hereinbefore recited in finding 14, constituted a gift by the deceased to his grandchildren as a class. That said gift vested in the six grandchildren living at the time of his death, and the entry of final judgment herein is subject to being reopened with the birth of each additional grandchild thereafter to admit such additional grandchild, and will be subject to so re-open so long as there are assets in said trust undisposed of. That the trust must be divided each time a grandchild reaches the age of thirty on the basis of the number of grandchildren then actually living.

'24. That the share properly payable to Maxine Perry Tesia on March 26th, 1955, should have been a one-ninth share of the trust estate.'

The court ordered and adjudged:

'1. That the construction placed on the will of the deceased in the Final Judgment is not binding upon any grandchildren of the deceased who might be born after his death and that by reason thereof said will and final judgment may now be construed.

'2. That Article Third of the Will, and that portion of the Final Judgment hereinbefore recited in finding 14, constituted a...