Hoyt's Estate, In re

Citation82 N.W.2d 177,275 Wis. 484
PartiesIn re ESTATE of Charles W. HOYT, Deceased. FIRST NATIONAL BANK IN OSHKOSH et al., Respondents, v. Ethel MICHAEL et al., Appellants.
Decision Date09 April 1957
CourtWisconsin Supreme Court

Sarah E. MacAllister, whose maiden name was Sarah E. Hoyt, was a blood aunt of Charles W. Hoyt. Her brother, Linus Hoyt, was the father of testator, Charles W. Hoyt. Sarah E. MacAllister had two children, Ethel Michael and Gladys Wells, appellants herein, who still survive and as issue of a relation of Charles W. Hoyt, deceased, are parties in interest in this matter. Sarah E. MacAllister died November 27, 1951, predeceasing the testator, Charles W. Hoyt, who knew of the death of said Sarah E. MacAllister by reason of the fact that he attended her funeral at Kansas City, Missouri.

The second codicil to the will was executed on November 6, 1952. Clause Fifth of the original will was not changed, but by the codicil the testator provided, 'In all other respects, I ratify and confirm my said last will and testament.'

The testator died on December 24, 1954. The will and the codicils were admitted to probate. Blanche E. Hoyt, sister of the testator, survived him and is still living.

The final judgment assigning the estate was entered on October 14, 1955, and by it the First National Bank in Oshkosh was appointed as trustee of the trust created by Paragraph Fifth of the will. Under the judgment one third of the residue of the estate as the corpus of the testamentary trust was assigned to the trustee. On March 23, 1956, the trustee petitioned the court for instructions as to whether the payment of $1,500 annually out of the corpus of the trust estate payable to Sarah E. MacAllister should be payable to Ethel Michael and Gladys Wells or any other person or persons, and, if so payable, for what duration.

Included also in the statement of the case are the will and the two codicils of the testator as admitted to probate. In addition to Paragraph Fifth as set forth above, the will, exclusive of formal parts, provides:

'Second: I hereby give and bequeath to my sister, Blanche E. Hoyt, all of my wearing apparel, ornaments, jewelry, books, pictures, household furniture, furnishings and fixtures of any and every kind, and any automobile or automobiles which I may own at the time of my death, with all accessories, furnishings and supplies.

'Third: I give, devise and bequeath one-third (1/3) of the residue of my estate to my brother, George Hoyt, in event that he survives me, and in event he does not survive me, then I give, devise and bequeath said one-third (1/3) of the residue of my estate to First National Bank in Oshkosh, as trustee, under the trust hereinafter established.

'Fourth: I give, devise and bequeath one-third (1/3) of the residue of my estate to my sister, Blanche E. Hoyt, in event that she survives me, and in event she does not survive me, then I give, devise and bequeath said one-third (1/3) of the residue of my estate to First National Bank in Oshkosh, as trustee, under the trust hereinafter established.'

The codicil dated September 8, 1950 reads as follows:

'I hereby revoke Paragraph Third of my said last will and testament and substitute therefor the following:

'Third: I give, devise and bequeath one-third (1/3) of the residue of my estate to the children of my brother, George Hoyt, share and share alike, their heirs and assigns forever.'

'In all other respects I ratify and confirm my said last will and testament.'

The codicil dated November 6, 1952 reads as follows:

'I hereby revoke that part of the first codicil, dated September 8, 1950 to my last will and testament which revokes Paragraph Third of my said last will and testament, and hereby substitute therefor the following:

"Third: I give, devise and bequeath one-third (1/3) of the residue of my estate to my brother, George Hoyt, in event that he survives me, and in event he does not survive me, then I give, devise and bequeath said one-third (1/3) of the residue of my estate to First National Bank in Oshkosh, as trustee, under the trust hereinafter established.'

'In all other respects I ratify and confirm my said last will and testament.'

It further appears from the statement of the case that the petition for instructions was heard by the court on April 25, 1956, and that on August 22, 1956 an order and judgment were entered wherein it was determined that the trustee should not pay the Sarah E. MacAllister annuity to her surviving issue.

This appeal was taken by Ethel Michael and Gladys Wells from that part of the order and judgment which provides: (a) That the deceased, Charles W. Hoyt, by his will created a trust; that from the corpus of this trust, an annuity of $1,500 was to be paid to Sarah E. MacAllister, aunt of said deceased, during her own life, conditioned upon her survival of said deceased, and (b) That the trustee is hereby instructed and ordered to make no $1,500 annual payments to Mrs. Ethel Michael and Mrs. Gladys Wells, children of Sarah E. MacAllister.

Keefe, Patri, Stillman & Nolan, Oshkosh, William E. Crane, Oshkosh, for appellant.

Thompson & McCarthy, Barnard & Allen, Williams, Williams & Meyer, William M. Gengler, D. E. McDonald, Oshkosh, for respondents other than trustee.

STEINLE, Justice.

Appellants' principal contentions are that: (1) The bequest of the annual payments in monthly installments to testator's aunt, Sarah E. MacAllister, under the terms of the Fifth Paragraph of the will is an annuity and a legacy; (2) The only period of limitation contained in the express words of the testator's will as to the payments to be made under the trust, is the period of the life of the testator's sister, Blanche E. Hoyt; and (3) That since the annuity is for the period of the life of another, to wit, testator's sister, the antilapse statute, sec. 238.13, Stats., is applicable, and hence the appellants, as children of the deceased annuitant and legatee, Sarah E. MacAllister, are entitled to the share bequeathed to their mother with the right to payment thereunder to continue in them until the death of the testator's sister, Blanche E. Hoyt.

It is the position of the respondents that (1) The will clearly evidences an intent to limit the annuity to the life of the aunt, Sarah E. MacAllister, and because she predeceased the testator, the annuity terminated upon the death of said aunt, and the fund out of which it was created became a part of the corpus of the trust to which respondents are entitled upon the death of testator's sister, Blanche E. Hoyt; (2) That the will does not evince an intent that the annuity shall continue during the lifetime of the testator's sister; (3) That under the antilapse statute, sec. 238.13, Stats., the appellants, as children of the annuitant, Sarah E. MacAllister, would have taken the annuity bequeathed to their mother had such annuity not been for her lifetime, but had it continued beyond that period providing no different disposition of the annuity had been intended by the testator. However, a different disposition was made by the testator.

The gift to the testator's aunt, Sarah E. MacAllister, under the trust provided in the Fifth Paragraph of the will, was an annuity. Ordinarily an annuity, if unlimited as to time, is presumably (apart from other indications of intention) intended to continue during the life of the annuitant. 2 Am.Jur., Annuities, p. 821, sec. 8. A simple annuity generally ceases with the life of the annuitant when no time is limited for its duration. 3 C.J.S., Annuities, § 3(b)(1), p. 1378. If the testator does not specify...

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