In re Kopmeier

• Decision Date: 18 February 1902
• Citation: 113 Wis. 233,89 N.W. 134
• Parties: IN RE KOPMEIER.
• Court: Wisconsin Supreme Court

113 Wis. 233

89 N.W. 134

IN RE KOPMEIER.

Supreme Court of Wisconsin.

Feb. 18, 1902.

Appeal from circuit court, Milwaukee county; Lawrence W. Halsey, Judge.

Petition by Gerhard J. Kopmeier and others, administrators de bonis non with the will annexed of John T. Kopmeier, deceased, for a construction of decedent's will. From a judgment of the circuit court reversing the judgment of the county court construing the will, the administrators appeal. Affirmed.

On April 7, 1887, John T. Kopmeier executed his will, whereby, after certain money bequests, he gave all of the residue of the estate to his wife, to hold during the term of her natural life, subject to the charge of supporting two daughters until their marriage. The sixth clause of the will was as follows: “Sixth. From and immediately after the death of my beloved wife, I give, devise, and bequeath all the rest, residue, and remainder of my estate, both real and personal, goods and chattels, of what nature or kind soever, to my children, Maria Adelheide Koetting, wife of John B. Koetting, Johann Heinrich Kopmeier, Anna Josephine Schwaab, wife of Andreas Schwaab, Katharina Elizabeth Kopmeier, Gerhard Heinrich Kopmeier, Hubert Stephanus Kopmeier, Albert Heinrich Kopmeier, and Adelheide Theodora Kopmeier, to be divided between them equally, share and share alike, and to have and to hold the same to them, and their heirs and assigns, forever; but none of the real estate which I shall own and die possessed of shall be in any manner conveyed or sold until the expiration of twenty-one (21) years from the date of this instrument; and I wish, and hereby direct my executors, as hereinafter nominated and appointed, that after all the taxes, costs, repairs, and expenses have been paid out of the income, rents, and profits of said real estate, all such net income, rents, and profits to be divided between my said children equally, share and share alike, at the end of every one year during such time, and till the expiration of said twenty-one years, as stated above.” He named his wife as executrix during her life, and provided, “After the death of my said wife, I nominate and appoint John B. Koetting and Maria Adelheide, his wife, Katharina Elizabeth Kopmeier, and Gerhard Heinrich Kopmeier to succeed my said wife as executors;” making, also, some provision in case of death of such nominees. John T. Kopmeier died September 2, 1888. The will was probated, and letters testamentary issued to the widow, as executrix, May 7, 1889, and she died December 30, 1898. On March 24, 1900, letters of administration de bonis non with the will annexed were issued to John B. Koetting, Maria A. Koetting, his wife, Katharina E. Wolter, and Gerhard J. Kopmeier,--the first being a son-in-law, and the other three, children, of the testator,--and in May of the same year they presented to the county court a petition for the construction of said will, especially the sixth and seventh paragraphs thereof. The children of the testator named in said sixth paragraph are still alive. Their ages at the date of the will ranged from that of Adelheide, 15 years, to that of Maria A. Koetting, 36 years. The estate, at the time of the petition consisted almost exclusively of real estate, of value, approximately, $150,000, and yielding income of about $5,000. The county court held all of the limitations upon the estate conveyed to the children invalid, and adjudged in them absolute fee simple, dating from their mother's death. The circuit court, upon appeal by Anna J. Schwaab, one of the children, reversed this judgment, and adjudged that by the will a valid trust term was created, expiring 21 years after April 7, 1887; that the legal title to the property became vested in the executors named in the will on December 30, 1898, upon the trust to care for and manage the estate, to receive rents, income, and profits therefrom, to pay taxes, costs, repairs, and expenses, and the net amount of such rents, income, and profits to be divided equally between the children of said testator at the end of each year; also made construction of the seventh paragraph of the will, which is not assailed by either party. From that judgment the four persons named as executors bring this appeal.Rogers & Mann, for appellants.

Nath. Pereles & Sons, for respondents.

DODGE, J. (after stating the facts).

The first contention made by appellants is that by the sixth paragraph of the will a devise is made to the testator's children, to take effect upon the death of their mother, absolutely and in fee simple, and that the prohibition against conveyance, being repugnant thereto, is wholly void; basing their contention upon Zillmer v. Landguth, 94 Wis. 607, 69 N. W. 568. If the premise were conceded, escape from the conclusion would not be easy; but that premise is controverted by the contention that the will evidently creates a trust in the executors, to continue during the unexpired part of the period limited by 21 years from the date of making the will, so that the interest of the remainder-men does not take effect until that time. If this be so, of course there is no repugnancy between the gift in trust and the provision that no alienation shall occur until its expiration. An examination of this paragraph in the light of the facts as to the condition of the estate,...