In re Pierce

• Decision Date: 09 January 1883
• Citation: 14 N.W. 588,56 Wis. 560
• Parties: IN RE PIERCE.
• Court: Wisconsin Supreme Court

56 Wis. 560

14 N.W. 588

IN RE PIERCE.

Supreme Court of Wisconsin.

Filed January 9, 1883.

Appeal from circuit court Rock, county.

Prosper A. Pierce died testate March 18, 1875. His will was duly proved, and the appellant, Stephen C. Pierce, qualified as sole executor. On an accounting in the court in August, 1880, there was found in the hands of the executor belonging to said estate (the debts against the estate all having been paid) the sum of $715.34, of which $331.34 was personal estate, and the remaining $384 was rent from the farm mentioned in the will of the deceased. The county court made an order distributing the $331.34 among the legatees entitled thereto under the will, but refused to order distribution of the $384. That court also refused to assign the real estate mentioned in the will to the devisees therein named. The executor was ordered to pay certain taxes and the annuity then due the widow under the will out of the $384, and to invest the residue. From that portion of the order refusing to distribute the surplus rent, and to assign the real estate, one of the devisees appealed. The circuit court reversed the portion of the order appealed from, and directed the county court to make such assignment of the land charged with the annuity, and such distribution of the surplus rent. From such order of the circuit court the executor now appeals.Smith & Emmons, for respondents, Anna E. Pierce and others.

Winans & Fethers, for appellant, Stephen C. Pierce, executor, etc.

LYON, J.

The determination of this appeal turns upon the construction of the following clauses in the will of the testator, Prosper A. Pierce: “ First. After the payment of all my just debts and funeral expenses, I give, devise, and bequeath to my wife, Amanda Pierce, the sole use and control of my stone dwelling-house, and one acre of ground on which the same is situated, being on my farm in the town of Janesville, in said county of Rock, and two hundred and fifty dollars ($250) per year during her natural life, the payment of said annuity to be made to her, first, six months after my decease, $125, and $62.50 quarterly thereafter; all of said annuity to be taken from the proceeds of my said farm each and every year.” “ Sixth. I give, devise, and bequeath to my two sons, Stephen C. Pierce and William H. Pierce, and my daughter-in-law, Anna E. Pierce, wife of George M. Pierce, and all of her children who may be living at the time of my decease, all the rest, residue, and remainder of my personal estate at the time of my decease, and of my real estate at the time of the decease of my said wife, Amanda Pierce; two-thirds of the same to be equally divided between my said sons, Stephen C. and William H., and the remaining one-third to be equally divided between the said Anna E. Pierce and her children, share and share alike; the share of the said children to be held in trust for them during their minority by their mother, Anna E. Pierce.” “ Seventh. I hereby nominate and appoint my two sons, Stephen C. and William H., the executors of this, my last will and testament, and I hereby authorize and empower them to compound, compromise, and settle any demand against or in favor of my said estate.”

The county judge held, in effect, that under these clauses the executor was entitled to the possession of the land, in trust, to pay the widow of the testator out of the rents thereof the annuity given her by the will, and that he should retain the surplus rents, in trust, as a fund out of which any deficiency in the rents to pay the annuity in any year should be made good. Hence, he refused to distribute such surplus, or assign the land to the devisees thereof named in the will. The circuit judge held that the estate of such devisees was vested; that they were entitled to the possession of the land, subject to the annuity charge, at once; and that the surplus rents in any year were subject to immediate distribution among them.

We are to determine which of these opposing constructions must prevail. It will be observed that in the sixth paragraph of his will the testator bequeaths and devises to the person therein named all the rest, residue, and remainder of the personal estate of the testator at the time of his decease, and of his real estate at the time of the decease of his said wife. The will contains no other devise of real estate, except that in favor of the testator's wife, found in the first paragraph thereof. It does not provide in terms who shall be entitled to the possession of the real estate, except the house and acre of land devised to the widow for life. No life estate in the residue of his land is devised, and no trustee is named or provided for to hold the land during her life. These omissions have produced this controversy.

The testator, by his will, did not appoint the persons named therein as executors, or either of them, or any other person, trustees or a trustee, to hold during the life of his widow the land devised by him, or any part thereof. Hence, whatever may be the tenure of such land, it cannot be held that the appellant is a trustee in respect thereto. Neither can it be held that the executor, virtute officii, is a trustee to hold possession of the land devised during the life of the testator's widow. The statute (Rev. St. p. 949, § 3850) provides that the time for the settlement of an estate shall not be extended beyond six years after the granting of letters testamentary. In this case such letters were granted to the...