In re Luscombe's Will

• Decision Date: 26 February 1901
• Citation: 85 N.W. 341,109 Wis. 186
• Parties: IN RE LUSCOMBE'S WILL.
• Court: Wisconsin Supreme Court

109 Wis. 186

85 N.W. 341

IN RE LUSCOMBE'S WILL.

Supreme Court of Wisconsin.

Feb. 26, 1901.

Appeal from circuit court, Milwaukee county; Eagan S. Elliott, Judge.

Petition by Seville De G. Turner for final distribution of the estate of Samuel D. Luscombe, deceased, under the last will and testament of said deceased. From a judgment of the circuit court affirming the order of distribution of the county court, David C. Green, one of the executors, appeals. Affirmed.

Appeal from judgment of the circuit court for Milwaukee county affirming, with certain modifications, the order of the county court for final distribution under the will of Samuel D. Luscombe. That will, which disposed of an estate of about $85,000, after certain specific bequests devised the residue of the property to the executors, David C. Green and Thomas J. Pereles, as trustees to collect rents and profits, convert into money, and reinvest according to directions given; to pay therefrom the expenses of administration, and certain specific bequests, some of which are paid, and some lapsed by reason of the nonexistence of the conditions on which they were payable; but, further (b), to set aside the sum of $5,500, and pay the interest thereof to a daughter of the testator, Nellie M. Sanger, during the term of her life; the residue to be invested, and “the net income derived from such investments shall be paid in equal shares and semiannual payments, respectively, to my son, Robert [[[Luscombe], and my said daughter Nellie [Sanger], during the terms of their respective lives.” The foregoing was embodied in what was designated subdivision “f” of paragraph 7 of the will. The will proceeded:

“Eighth. In the event of the death of my said son, Robert Luscombe, either before or after my decease, I give, devise, and bequeath to the lawful issue, if any, of the said Robert Luscombe, one-half (1/2) of the residue of my estate mentioned in subdivision ‘f’ of paragraph seventh of this will, together with the income then accumulated thereon. In the event of the death of my said son, Robert Luscombe, either before or after my decease, without lawful issue, said residue, including the unpaid income on all of the same, my said trustees shall: (1) Set aside one-fourth (1/4) part of said residue to be added to the fund and held in trust and invested in first mortgage real estate securities for the benefit of my said daughter Nellie M. Sanger, and the income thereof paid to her during the term of her natural life, in addition to the income provided under subdivision ‘f’ of paragraph seventh of this will. (2) To pay one-fourth (1/4) of said residue to my said wife if living at such time. (3) The remainder, including the part to my wife in case of her death, to be paid to my said daughter, Mary J. Wright; she to have and to hold the same, to her, her heirs and assigns, forever.

Ninth. In the event of the death of my said daughter Nellie M. Sanger either before or after my decease, I give, devise, and bequeath the said fifty-five hundred (5,500) dollars mentioned in subdivision ‘b’ of paragraph seventh of this my will, the one-half (1/2) of the residue of my estate mentioned in subdivision ‘f’ of said paragraph seventh, together with the income accumulated thereon, and the one-fourth (1/4) part set aside of the share of my said son, Robert Luscombe, in the event of his death, as provided for in the preceding paragraph eight, all to be paid to the lawful issue of my said daughter Nellie M. Sanger, if any. In the event of the death of my said daughter Nellie M. Sanger, either before or after my decease, without lawful issue, said residue, including the unpaid income on all of the same, my said trustees shall: (1) Set aside one-fourth (1/4) part of said residue, to be added to the fund, and held in trust, and invested in first mortgage real-estate securities for the benefit of my said son, Robert Luscombe, and the income thereof paid to him during the term of his natural life in addition to the income provided under subdivision ‘f’ of paragraph seventh of this will. (2) To pay one-fourth (1/4) of said residue to my said wife, if living at such time. (3) The remainder, including the part to my wife in case of her death, to be paid to my said daughter Mary J. Wright; she to have and to hold the same, to her, her heirs and assigns, forever.

Tenth. I hereby declare that, in making provision for the payment of the income of the portion of my estate hereby set aside for my son, Robert Luscombe, and my daughter Nellie M. Sanger, it is my design to secure to them, and to each of them, the necessaries of life, so that such income or estate cannot be assigned, charged, pledged, hypothecated, or in any way or manner controlled or disposed of by them, or either of them, or taken by their creditors; and for the purpose of making myself fully understood on this point, and to carry out such design, it is my will that my executors and trustees may, in their discretion, make payments to or for them, or either of them, from said net income, as provided for, or to wholly withhold the same, and in case any proceedings are instituted for the purpose of reaching the income so provided for, and of diverting it from the object intended by me, and a decree or judgment obtained for that purpose, that then from that period all payments from the said income to them, or either of them, shall cease, and I direct my executors and testamentary trustees from thenceforth to expend the said income provided for in this item of my will, so far as may be necessary or requisite, to the education and maintenance of the lawful issue of them, or either of them, until such issue arrive at the age of twenty-one years, in which event the said property shall be by my said executors and trustees assigned and conveyed to the said issue in the proportion and as provided for for them in paragraphs eight and nine of this will; and in case there is no lawful issue of them, or either of them, living, then to distribute to my daughter Mary J. Wright and my said wife and their issue as hereinbefore provided.”

The will was admitted to probate by stipulation of all parties except the executors, after an extended contest, a part of which stipulation consisted in a conveyance to Robert Luscombe by the widow, Seville Luscombe (now Turner), and by Mary J. Wright, of any portion of the body of the trust residuum which might come to them in the event of the termination of said trust as to Robert, either by adjudication of its invalidity, or by reason of any judgment of any kind against said Robert. Thereupon, before final settlement of the estate, on March 18, 1899, one Goodwin recovered a judgment against Robert Luscombe in justice court, transcripted the same to the circuit court, issued execution thereon, which was returned unsatisfied, and thereupon commenced an action in the superior court of Milwaukee county upon said judgment, for the purpose, as the court found, of “subjecting the interest of Robert Luscombe in the income bequeathed for him in trust by said will to the payment of said judgment,” and recovered a decree or judgment in form subjecting the said interest of Robert Luscombe to the payment of said Goodwin judgment and costs. The court further found that said judgments were entered upon a bona fide debt, and not with any purpose on the part of said Goodwin of avoiding the provisions of the will of said testator for the benefit of said Robert, but that said Robert knew that said judgment would have that effect, “and, while not appearing in said action, permitted the said judgments to go against him, and acquiesced in them, by making no resistance to said actions and failing to pay said demand.” Neither of the executors were parties to Goodwin's actions. At the time of his father's death, Robert was, and at all times since has been, without issue, and is now unmarried, being divorced from his former wife. Nellie Sanger is a widow without children, and Mary J. Wright has two children. Said three persons are the only children, and, with the widow, Seville, are the only heirs at law, of the testator. It was stipulated that at the time of making the will, and at all times since, Robert was a practicing attorney, in no wise dependent upon his father or on any other person, and received no pecuniary assistance from his father, but maintained himself by his own exertions, and since 1890 has been a total abstainer from all intoxicatingliquors or any form of intoxicants, which facts were well known to the testator at and prior to the time of making his will; that at that time Robert Luscombe was a married man, but living apart from his wife, divorce proceedings being contemplated. His wife demanded about $10,000 permanent alimony, which demand was known to the testator, and testator was insistent that said wife should not have the right to enforce any claim to any of testator's property which might come to Robert by inheritance from him, and at and prior to the time of making the will in question asserted that this demand of Robert's wife was testator's controlling motive for making the trust provisions in said will relative to Robert, which trust provisions, however, were made applicable to all judgments, as therein described, so as to comply with the law, and not specify any particular demand of any particular person. Subsequent to testator's death, Robert obtained a divorce from his wife, who has since remarried, so that she has no further claim for alimony. The circuit court held that by the rendition of the judgments in favor of Goodwin arose the condition upon which the trust for the benefit of Robert became terminated, under the tenth paragraph of the will, and that, he having no issue, a certain portion of the body of said residuum passed to and became vested in Mary J. Wright and the widow, Seville Luscombe (Turner); that their assignments thereof to Robert were valid as between them, and...