Harrison v. First Wis. Trust Co. (In re Estate)

• Decision Date: 15 October 1926
• Citation: 210 N.W. 418,191 Wis. 23
• Parties: IN RE ALLIS' ESTATE. HARRISON ET AL. v. FIRST WISCONSIN TRUST CO. ET AL.
• Court: Wisconsin Supreme Court

191 Wis. 23

210 N.W. 418

IN RE ALLIS' ESTATE.HARRISON ET AL.

v.FIRST WISCONSIN TRUST CO. ET AL.

Supreme Court of Wisconsin.

Oct. 15, 1926.

Appeal from Milwaukee County Court; Michael S. Sheridan, Judge.

On motion for rehearing. Motion denied.

For former opinions, see 209 N. W. 945.John C. Albert, of Milwaukee, for minor appellants.

Lines, Spooner & Quarles, of Milwaukee (James Quarles, of Milwaukee, and W. Pratt Dale, of Louisville, Ky., of counsel), for other appellants.

Miller, Mack & Fairchild, of Milwaukee, for respondents.

Van Dyke & Hauxhurst, of Milwaukee, for Barr.

PER CURIAM.

[1] The will of Ernest Allis so clearly expresses the testator's intent that the children of Mrs. Harrison should not take a vested estate that the citation of authority to support the proposition that “the minor appellants have no vested interest in the trust estate” is not deemed necessary. The will in clear and unequivocal language expresses the testator's intent that Mrs. Harrison shall have the absolute power to dispose by will of all the trust estate in which her children could ever take any estate or interest under the will of Mr. Allis. That power remains with Mrs. Harrison until the last moment of her life. Until the death of Mrs. Harrison, it cannot be determined whether these children inherit any part of the trust estate under and through the provisions of the will of Ernest Allis. By the terms of the will it is “as and when” any of the testator's children die intestate that that child's portion of the trust estate passes to the heirs at law of the deceased child of the testator. The will contains no other provision under which these minor appellants can ever inherit any part of this trust estate under the will of Ernest Allis. No estate passes and no interest vests in the heirs at law of any of testator's children until--that is, “as and when”--any child of the testator dies intestate. In order that an estate may vest there must be some person in being in whom the estate can vest. At the time of the creation of the trust estate the minor appellants were not in being. Manifestly no estate could then vest in the unborn children of a daughter who was unmarried at the time that the trust estate was created.

Rules for the judicial construction of wills are to be resorted to only when uncertainty arises as to the meaning of the language used in the will.

“Various rules have been laid down by the courts as helpful in the construction of uncertain clauses in wills. None of them are inflexible, however, and all yield to the cardinal rule that the words of a will are to be construed so as to give effect to the intention of the testator, which intention is to be ascertained from the language of the will itself, in the light of the circumstances surrounding testator at the time of its execution.” Ohse v. Miller, 137 Wis. 474, 476, 119 N. W. 93, 94.

See, also, Will of...