Knox v. Knox

• Decision Date: 08 January 1884
• Parties: KNOX, EX'X, ETC., v. KNOX AND OTHERS.
• Court: Wisconsin Supreme Court

59 Wis. 172

18 N.W. 155

KNOX, EX'X, ETC.,

v.KNOX AND OTHERS.

Supreme Court of Wisconsin.

Filed January 8, 1884.

Appeal from circuit court, Milwaukee county.Ordway & Hoyt, for appellant, Mary A. Knox, Ex'x, etc.

S. U. Pinney and Joshua Stark, for respondents, Thomas M. Knox, Jr., and others.

TAYLOR, J.

This action was brought in the circuit court of Milwaukee county by the appellant, who is the widow and executrix of the deceased, Thomas Knox, against the respondents, who are the children of said deceased, to obtain a construction of the last will and testament of said deceased. The will was duly probated in the county court of said county, and letters testamentary were duly issued to the said appellant. The appellant in her complaint sets out the will of her husband at length, and claims that the proper construction of the same gives her the entire estate absolutely, and that no part of it is given to her in trust for the benefit of the children of the deceased. On the part of those of the defendants who filed answers to the complaint, it is claimed that the proper construction of the will gives the widow a life estate in all the property of the deceased husband and father, and that she takes the remainder in trust for the children. The learned circuit judge construed the will as claimed by the respondents, giving a life estate to the widow with remainder in trust for the children, and entered the following judgment in the case:

“This cause came on to be heard at this term upon the complaint and upon the answers of the defendants Mary Ann McMahon and Kate L. Decker, respectively, and was argued by counsel for the respective parties; and thereupon the court, being well and sufficiently advised of and concerning the same, it is hereby ordered and adjudged that, according to the terms and true meaning and intent of the will of Thomas M. Knox, deceased, mentioned and set forth in the complaint herein, all the real and personal estate, money, tax certificates of sale, goods, chattels, and all other his worldly substance, of every nature and kind whatever, of which the said Thomas M. Knox died seized or possessed, were given, devised, and bequeathed, in and by his said will, to his wife, the complainant, Mary Ann Knox, for her life, with power of sale thereof, and with the right to apply only the net rents, income, and profits of said estate, and of the proceeds or avails of the same during her life, to her own use.

It is further adjudged that by and under the said will the said Mary Ann Knox is made trustee of the capital of the said property and estate of the said testator, so given, devised, and bequeathed to her, and of the proceeds or avails thereof, for the benefit of the children of the said testator named in said will, with the power and duty to divide the same by will or otherwise, at her death, among the said children in equal shares, and that she, the said Mary Ann Knox, has not the right or power, under the said will, to divert any part of the said capital, or of the avails or proceeds of said property and estate of said testator from his said children, or in the disposition of the same to prefer the said children one above another, but she is authorizedto have, use, and enjoy, as her own, only the net rents, income, and profits of said capital, or of the avails or proceeds of said estate, during her natural life, as the owner of a life interest and estate therein, holding the said capital and the avails as proceeds of said estate in trust for the children named in the said will as aforesaid.

And it is further ordered and adjudged that the said will be construed and carried into effect accordingly.”

From that judgment the widow and executrix appeals to this court, and here makes the same claim she did in the circuit court, viz., that she is entitled, by the terms of the will, to the whole of the estate of her husband absolutely. There were no proofs taken in the court below. The case was submitted to the judgment of the court upon the complaint and answers. The complaint makes no statement as to the value of the estate of the deceased, but alleges that all the debts of the deceased have been paid by her, making no statement as to their amount. The answer of the defendant Mary McMahon alleges that the real estate of the deceased was large and productive, and that the personal estate was of the value of $35,000. The following is the part of the will upon which the construction of the court is invoked: “I give, devise, and bequeath unto my wife, Mary Ann Knox, her heirs and assigns forever, all my real and personal estate, money, tax certificates of sale, goods, chattels, and all other my wordly substance, of every nature and kind whatever, of which I may die seized or possessed, having full confidence in my said wife, and hereby request that at her death she will divide equally, share and share alike, in equal portions, as tenants in common, between my sons and daughters, Thomas M. Knox, Jr., Richard C. Knox, Barclay Sidney Knox, John Knox, Mary Ann McMahon, now of Greensboro, North Carolina, and Kate L. Decker, the wife of Myron A. Decker, all the proceeds of my said property, real and personal, goods and chattels, hereby bequeathed.”

The two important questions to be considered in the construction of the provisions of the will above quoted are: First, has the testator in his expressed request in said will clearly pointed out the persons whom he desired should be the recipients of his bounty, and has he clearly defined the part of his estate which he desired they should receive? and, second, does the language used by him clearly show that he intended it to be obligatory upon his wife to whom he had devised all his property in fee, and not merely advisory? The learned counsel for the respective parties have in their briefs and their oral arguments in this court discussed these questions in all their bearings, and have cited and commented upon most of the leading cases in the English courts and the courts of this country, bearing upon them, and we acknowledge our obligation to them for the aid they have given us in the solution of the questions to be determined. The cases which have been before the courts involving the question to be determined are so numerous that it would be impossible to cite and intelligently comment upon and analyze them without writing a treatise upon the subject of implied trusts. We shall therefore content ourselves with the citation of a few general rules or principles which the law-writers upon this subject have deduced from the adjudged cases as applicable to the proper construction of wills of the kind under consideration:

First. “It is not necessary that technical language should be used to create a trust. It is enough that the intention is apparent.” 1 Jarm. Wills, (5th Ed.) 385, and note.

Second. “That precatory words used in a will,--that is, words of recommendation, entreaty, request, wish, or expectation,--addressed to a devisee or legatee, may be sufficient to create a trust in favor of the person or persons in whose favor such expressions are used.” 1 Jarm. Wills, (5th Ed.) 385; Lewin, Trusts, 118; 2 Story, Eq. Jur. § 1068, 1068 a; Hill, Trust. 71, side paging; 2 Redf. Wills, 410, 411.

Third. In order to determine whether precatory words in a will create a binding trust, “the real question always is whether the wish, desire, or recommendation expressed by the testator is meant to govern the conduct of the party to whom it is addressed, or whether it is merely an indication of that which he thinks would be a reasonable exercise of the discretion of the party, leaving it, however, to the party to exercise his own discretion.” 2 Redf. Wills, 416; Williams v. Williams, 1 Sim. (N. S.) 358; Hill, Trust. 114; 2 Story, Eq. Jur. (12th Ed.) § 1068 b, and cases cited.

Fourth. In determining that precatory words in a will create a trust, the courts give great weight to the fact that the person or object to which the precatory words apply is clearly pointed out, and the quantum of the estate to be given to such person or object is also clearly defined. 1 Jarm. Wills, 396; 2 Redf. Wills, 416; 2 Story, Eq. Jur. §§ 1070, 1071. See, also, a very instructive note to the case of Harrisons v. Harrisons' Adm'r, 44 Amer. Dec. 365, 369.

Taking these general rules for our guide in construing the will before us, we have no serious difficulty in determining that the learned circuit judge properly construed the same. There is no dispute but that the persons to whom the precatory words apply are clearly pointed out by the will; and the learned counsel for the appellant does not strenuously contend that the quantum of the estate which the testator requested should go to such parties is not also sufficiently and clearly indicated. The words used by the testator in describing the property he requests should go to his children after the death of his wife are, “all the proceeds of my said property, real and personal, hereby bequeathed.” We think the argument of the learned counsel for the respondents shows conclusively that...