In re Smith's Will

• Decision Date: 12 January 1922
• Citation: 176 Wis. 494,186 N.W. 180
• Parties: IN RE SMITH'S WILL.
• Court: Wisconsin Supreme Court

176 Wis. 494

186 N.W. 180

IN RE SMITH'S WILL.^a1

Supreme Court of Wisconsin.

Jan. 10, 1922.

Dissenting Opinion Jan. 12, 1922.

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

Application by the First Wisconsin Trust Company as administrator for the construction of the will of Mary Eliot Smith. From a judgment construing the will, Mary Eliot Smith Goodrich and others appeal. Affirmed.

Rosenberry and Owen, JJ., dissenting.

November 22, 1908, Mary Eliot Smith made her will just prior to making a European trip. She was then the owner of certain real estate in the city of Appleton and of certain shares of bank stock and her personal effects. One of the pieces of real estate in Appleton was sold prior to her death.

In 1917 Mrs. Smith's father, Robert Eliot, of Milwaukee, died intestate, leaving an estate of approximately $350,000, one-half of which came to Mrs. Smith, and comprised the great bulk of her estate at the time of her death. She died April 8, 1919, leaving surviving her husband, Franklin T. Smith, and three children, Mary Eliot, now Goodrich, Robert Eliot, and August Ledyard Smith, 3d. The two sons were minors at the time of her death, but one has attained majority since.

Application was duly made for a construction of the will by the administrator with the will annexed. Upon such hearing a guardian ad litem was appointed for the unascertained remaindermen. The portions of the will deemed in any wise material for consideration on this appeal are as follows: (1) Direction for the payment of debts, funeral expenses and of last sickness. (2) To the daughter the wearing apparel, jewelry and personal ornaments, with certain exceptions. (3) A gift and bequest to the daughter and the two sons, share and share alike, of all her right, title, and interest in and to the three certain pieces of land in the city of Appleton, Wis. (the piece first described being sold prior to her death). Also to them (4) all her right, title, and interest in and to certain bank stock. Then follow portions of the will directly involved on this appeal, to wit:

“And all the rest and residue of my property, real, personal or mixed, in possession or expectancy, I give, devise and bequeath to my daughter, Mary Eliot Smith, and my said sons Robert Eliot Smith and Augustus Ledyard Smith, share and share alike. And if either of my said children should, after my decease, die without issue living at the time of their death, or after my decease die leaving no husband or wife surviving, then and in such case his or her share shall go to the survivor of my said children; and if all of my said children should die after my decease leaving no issue living at the time of their death, or husband or wife surviving, then and in such case the whole residue and remainder of my estate shall go over and be disposed of in the manner specified in the next paragraph hereof. If either of my said children shall die before my decease, or after my decease, leaving issue, such issue shall take absolutely all the share which the parent of such issue had at the time of the death of such parent, or such share as the said parent would have had if he or she had survived me, as the case may be.

In case that neither of my said children nor any issue of either of them survive me, or in case either or all of my children do survive me, but after my death and at the death of the last survivor of them there be no issue living of any of my said children or husband or wife of either of my said children surviving, as the case may be, then and in either of these two cases, I give, devise and bequeath to my father, Robert Eliot [here follows a provision as to the Appleton real estate which was sold by testatrix], * * * and I will and bequeath to my cousin Amy Cross, the aforesaid numbered shares of bank stock in the National Exchange Bank of Milwaukee, Wisconsin, and all the rest and residue of my property, real, personal and mixed, to my cousin, Dorothy Kershaw, her heirs, executors, administrators and assigns but if she, the said Dorothy Kershaw should die before my aunt, Mrs. Julia W. Emmons and my cousin Mary Cristie Emmons, then and in such case it is my will that all the rest and residue of my property, real, personal and mixed, shall go to the said Julia W. Emmons and Mary Cristie Emmons, share and share alike, or to the survivor of them, as the case may be.”

Recital as to the omission to make any provision for her husband. Appointment of her husband as guardian of the children if they be minors at the time of her death. The appointment of an executor. Attached to the will is a writing in substance reciting knowledge of the execution of the will and waiver by the husband of any rights in and to her estate.

Some testimony was taken upon the hearing, but it is not deemed material to set forth here.

The county court made findings of fact and conclusions of law, the material parts of which, other than those embodied in the foregoing statement of facts, were to the effect that the shares of bank stock mentioned in the will were of the value of about $13,000; that she died seized of improved real estate in the city of Milwaukee valued at about $45,000, of unimproved real estate in the state of Michigan worth about $22,100, and in the state of California of about $500 value; that the real estate in the city of Appleton of which she died seized was worth about $3,200, and that the balance of the estate consisted of personal property appraised at about $302,000.

As conclusions of law the court construed the will to provide substantially as follows:

(1) The daughter to take the wearing apparel, jewelry, and personal ornaments absolutely.

(2) The three children to take each an undivided one-third in fee simple of the Appleton real estate.

(3) The three children to take absolutely, share and share alike, the bank stock.

(4) That the bequests over of said bank stock were void for repugnancy.

(No question is raised here by exceptions or appeal to the foregoing four conclusions.)

(5) That a trust is created for the rest and residue of the estate, both real and personal, after payment, etc.

(6) That the three children take a life interest in such trust estate share and share alike.

(7) That as each of the said children of testatrix dies an undivided one-third part of the principal of such trust fund shall be paid over to the issue of such deceased child equally, or, if no such issue survive such deceased child, then to the husband or wife, as the case may be, if any, surviving such deceased child; if there be surviving neither issue, husband, or wife, then such undivided one-third part of the principal of the trust estate shall still form a part of such trust, and be disposed of in the same manner for the benefit of the surviving children or child of the testatrix and their or its issue, husband, or wife; the surviving issue of any deceased child to take by right of representation.

(8) At the death of the last surviving child of the testatrix, there then being surviving no issue, husband, or wife of any of the children of testatrix, then any balance of the trust fund remaining shall be paid over to Dorothy Kershaw, testatrix's cousin, if then living, otherwise to the other cousin, Mary Cristie Emmons.

(9) That a trustee be appointed either by choice of the parties or by order of the court to administer said trust; that such trustee take title to all the property, real and personal, with the power under the direction of the court to sell, convey and pass title to such property, either real or personal, and to invest and reinvest the proceeds thereof.

The three children of Mrs. Smith have appealed to this court from so much of the judgment construing the will as in effect gives the three children a life estate merely in, and not absolute title to, the residue and bulk of the estate, and from so much thereof as declares the creation of a trust to administer said estate; and from so much as in effect determines that the children do not have at least a vested estate in the bulk of said estate, both real and personal, subject to be divested upon the happening of certain contingencies, and to so much thereof as in effect declares that the children are not entitled to the present possession of the property without intervention of a trustee, and to the absolute use of the income thereof and portions of the principal as may be required.

The construction of this will in the court below is supported here on behalf of the unascertained remaindermen by their guardian ad litem, Mr. Joseph H. Marshutz.

Edgar L. Wood, of Milwaukee, for appellants.

J. H. Marshutz, of Milwaukee (I. A. Fish, of Milwaukee, of counsel), for estate.

ESCHWEILER, J. (after stating the facts as above).

While the will of a testator, when not violating statutory or judicial prohibitions, should be the law of his will, the one here presents difficulties in arriving at any satisfactory conclusion as to what were the mental conclusions of the testatrix, at the time she executed the document, as to her wishes for the future disposition of her property.

At the time she made her will Mrs. Smith possessed but a relatively small amount of property, principally bank stock and certain real estate in Appleton. Some of the real estate was sold by her and by far the greater part of her estate came to her by inheritance from her father a number of years after the making of the will, and about two years preceding her own death, and is mainly personal property.

[1] Before discussion of the principal questions involved it is necessary to decide the contention urged on behalf of the three children of Mrs. Smith, the appellants here, that the real estate she acquired by inheritance from her father, being acquired subsequent to the making of the will, did not pass thereby, and should be disposed of as intestate property. This raises the...