LONG
J.
The
bill is filed in this cause by Joseph C. Ford, as executor of
the last will and testament of Francis F. Ford, deceased, to
determine the power of the executor under such will to sell
certain lands situated in this state. The will reads as
follows: "Know all men by these presents, that I
Francis F. Ford, of the city of Madison, county of Dane, and
state of Wisconsin, being of sound disposing mind and memory
do make, publish, and declare this to be my last will and
testament, in terms following, to-wit: (1) I direct that all
my lawful debts, funeral expenses included, shall be paid as
soon after my decease as practicable, out of moneys on hand,
or, if need be, from the income of my estate.
(2) It is my will, and I so direct, that the necessary
expenses of carrying my estate from year to year be paid from
the income thereof. (3) It is my will, and I so direct, that
all indebtedness from any of my brothers to me shall be, and
hereby is, canceled, and the legal evidence of such
indebtedness shall be returned to the makers thereof. (4) I
direct that all properties in Schedule A attached to this
instrument, and bearing my signature, shall be converted, as
soon as practicable after my decease, into rentable
'inside' property in Kansas City, Mo., at schedule
prices, or as much better as may be. (5) I also direct that
the several properties in Schedule B attached to this
instrument, and bearing my signature, shall, at the
discretion of my executors, either be sold, and the proceeds
thereof be invested in more desirable renting property in
Kansas City, or said proceeds be used in improving some one
or more of my Kansas City properties. (6) I also direct that
all moneys, notes, bonds, mortgages, or other evidence of
indebtedness to me from any and all parties, except my
brothers, shall, as soon as practicable after my decease, be
used either in the purchase of property in Kansas City, or
for improving properties in said city then on hand. (7) It is
my will, and I so direct, that my wife, Maggie, shall have
the use of my homestead, furniture and appurtenances, located
on Spaight street, Madison, Wis., so long as she may desire
to live in it as her home. In case at any time she shall
cease to desire it as her
home, I direct that as soon thereafter as practicable it be
sold at a price not less than ten thousand dollars,
($10,000,) or as much more as the property will bring, and
the proceeds thereof be invested in good rentable property in
Kansas City, Mo., and the rentals of such property be added
to the income of the estate. (8) It is my will and I so
direct, that, in addition to the use of said homestead and
furniture, my said wife, Maggie, shall have one-quarter of
the net annual income of the remainder of my estate during
her natural life, subject to modifications in article 12 of
this instrument. And it is expressly stipulated that the
above bequests to my said wife are in lieu of dower. (9) It
is my will, and I so direct, that my son, Marcus C. Ford,
shall have one-quarter of the net annual income
of my estate (homestead not included) until such time as, in
accordance with the provisions of this will hereinafter
named, he shall come into possession of the entire estate;
but the expenditure and use of said income during his
minority shall be under the control and direction of his
guardian. And I appoint his mother his guardian during his
minority, and, in the event of her death, I appoint my
brothers Edward I. and Henry T. in her place. (10) It is my
will, and I so direct, that my brother Edward Irving shall
have one-quarter of the net annual income of my estate
(homestead not included) during his natural life. (11) It is
my will, and I so direct, that my brothers Joseph F. and
Henry T. shall each have one-eighth of the net annual income
of my estate (homestead not included) during their natural
lives. (12) It is my will, and I so direct that, when my son,
Marcus C., reaches his majority, he shall become the owner in
fee of ten thousand dollars ($10,000) worth of my real
estate; and at twenty-five (25) years of age he shall have an
additional twenty thousand dollars ($20,000) worth of my real
estate; and at thirty (30) years of age he shall have an
additional twenty-five thousand dollars ($25,000) worth; and
at thirty-five (35) years of age he shall have an additional
forty thousand dollars ($40,000) worth; and at forty (40)
years of age the remainder of my estate shall become his. And
I also direct that the income of my said wife, Maggie, shall
be kept up to fifteen hundred dollars, ($1,500); any deficit
to be taken from the income of my son, Marcus C.; and, as an
offset thereto, my son, Marcus C., shall be entitled to any
excess in said wife's income over twenty-five hundred
dollars ($2,500) a year. (13) I also direct that, in the
event my son, Marcus C., shall decease after reaching his
majority, leaving one or more legitimate children of his
body, that the income of forty thousand dollars ($40,000)
worth of my estate, or so much thereof as may in prudence be
necessary, shall be used for the proper support of such child
or children until they shall severally become of legal age,
when an equal part of the above-named principal and accrued
interest shall become his or hers absolutely. (14) In the
event that my son, Marcus C., shall survive all my other
legatees, and then die before coming into
possession of my whole estate, it is my will, and I so
direct, that the remainder of my estate, as of that date,
shall belong to the Hamilton College, located at Clinton, New
York, to be used in the endowment of some new professorship,
and the remainder to be used at the discretion of the
trustees of said college, in the erection of some building
for college uses, or the endowment of additional
professorships; such buildings or professorships to bear my
name. (15) If either my wife, Maggie, or one of my brothers,
shall become my only surviving legatee, it is my will, in
that event, and I so direct, that my estate at that time be
divided as nearly as may be into two (2) equal parts, as
regards the value and renting power, and said wife or
brothers shall then choose between the income of said two (2)
properties, and have and enjoy the same during his or her
natural life. And it is my will that the other part of my
estate shall at that date become the property of Hamilton
College to be used as directed in article fourteen in this
instrument. And I further direct that, at the death of said
wife or brother, the remaining part of my estate shall become
the property of Hamilton College, to be used as in article
fourteen. I hereby appoint my two brothers, Joseph C. and
Henry T. Ford, as executors of this my last will and
testament."
The
Michigan lands are described in Schedule A, referred to in
the will, as follows:
"KALAMAZOO
PROPERTY, MICH.
"No.
2. All of block 7, except north half of lots 3 and 4; also
the north half of lots 1 and 2, in block 4; together with
all the buildings, machinery, tools, engine, boilers, and
fixtures thereon, and whatever else may belong to me. Value
of all property in block 7, $25,000. Estimated value,
$40,000. Value of property in block 4, $2,000. Estimated
value, $3,000"
The
testator, Francis F. Ford, was a resident of and domiciled in
the county of Dane, state of Wisconsin, at the time of the
execution of the will, and at the time of his decease
January 26, 1886. He left surviving him his widow, Margarett
G. Ford, his son, Marcus C. Ford, then about twelve years of
age, and three brothers, Edward Irving, Joseph
C., and Henry T. Ford. The will heretofore set forth was
admitted to probate in the county court of Dane county, June
17, 1886, and letters testamentary issued to Joseph C. Ford,
one of the executors named in the will, who accepted and duly
qualified as such. The other executor named in the will,
Henry T. Ford, did not accept the trust. The executor being
in doubt as to the meaning and validity of some of the
provisions of the will, brought an action in the circuit
court for Dane county, Wis., which was taken by appeal to the
supreme court of that state, and by that court the will was
construed in most of its provisions. That case is reported in
70 Wis. 19, 33 N.W. 188. The executor subsequently took
proceedings in the probate court of Kalamazoo county, in this
state, under section 5805, How. St., for the probate and
allowance of the will in this state, and in which court the
will was duly admitted to probate. The widow, Margarett G.
Ford,
renounced all claim under the will, and elected to take under
the statute. This was done in writing, and filed in the
probate court of Kalamazoo county, as provided by our
statute. This bill was filed in the circuit court in chancery
of Kalamazoo county, to determine the power of the executor
to sell the lands so situated in that county. The parties to
the proceedings taken in Wisconsin are the parties to the
present will. On the hearing in the court below, it was
adjudged and decreed that "the real estate described is
vested in complainant, Joseph C. Ford, as sole executor of
said will, as trustees, subject to the right of dower in said
lands of Margarett G. Ford, as widow of said testator; that
the executor has power, and is authorized as executor and
trustee, to receive the share of the rents, income, and
profits thereof belonging to said estate; that as such
executor and trustee he has power, and is authorized and directed, to sell said real estate at the best
price he can...
