Lawrence v. Barber

• Decision Date: 13 January 1903
• Citation: 116 Wis. 294,93 N.W. 30
• Parties: LAWRENCE v. BARBER ET AL.
• Court: Wisconsin Supreme Court

116 Wis. 294

93 N.W. 30

LAWRENCE

v.BARBER ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1903.

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

Suit by Abbott Lawrence, as executor, for the construction of the will of Edward Barber, deceased, against Edward B. Barber and others. From the judgment all parties appeal. Modified.

Petition by executor for construction of the will of Edward Barber, who died domiciled at Milwaukee December 7, 1901, leaving surviving him as heirs at law Edward B., Benjamin C., and Florence M. Barber, children, and two grandchildren, children of his son Harry C. Barber, who died in August, 1899. The will, as probated, consisted of the original will, executed November 7, 1891; a first codicil of July 11, 1895, which merely changed the nomination of executor; and a second codicil, executed August 9, 1900. The original will disposed of the property as follows: “First. To my daughter Florence M. Barber my oil painting of myself. Second. To my son Harry C. Barber my crayon portrait of myself. Third. To my children Harry C., Edward B., Benjamin C., and Florence M. Barber, all the rest of my household furniture, wearing apparel, and personal ornaments. Fourth. To my said children (naming the same four), their heirs and assigns, forever, my homestead. Fifth. All the residue of the estate, subject to debts, to my said children [naming the four], or such of them as shall survive me, and their survivors, in trust to sell the same or any part, in discretion, and meanwhile to care for, manage, and collect rents and profits, to distribute the net income annually, and the proceeds of sales within a reasonable time after such sales, as follows: Eleven-twelfth parts thereof to my said children [naming the four], equally, and the remaining one-twelfth part thereof to my stepdaughter, Virginia C. Williams. * * * The duration of the estate of my said children * * * as trustees as aforesaid shall not exceed the life of the survivor of my said two youngest children, namely, Benjamin C. Barber and Florence M. Barber. Sixth. All the rest, residue, and remainder of all my estate * * * to my said children [naming the four], eleven-twelfth parts thereof, and to my said stepdaughter * * * the remaining one-twelfth part thereof. Seventh. In case of death of either child without issue, his share to pass to the others in the same manner as to him if living.” An executor was named, other than the trustees, and the trustees were exempted from giving bond.

The second codicil, executed after the death of the eldest son, Harry C. Barber, recited that certain property had been devised and bequeathed unto him, and that he had since died, leaving surviving him a widow and two children, Charles M. and Ruth E., and proceeded: “Whereas, it is now my desire to modify that portion of my said last will and testament wherein and whereby I give, grant, devise, and bequeath certain of my estate to my said son Harry C. Barber: Now, therefore, I desire to, and do hereby, modify my said last will and testament in so far as the same relates to my said son Harry C. Barber by revoking and hereby do revoke all grants, devises, and bequests made in said last will and testament to my son Harry C. Barber; and I hereby grant to my grandchildren Charles M. Barber and Ruth E. Barber, children of my said son Harry C. Barber, and unto them together, share and share alike, an undivided one-twelfth (1/12) interest in and to all of my estate, real, personal, and mixed, it being my express intention that the two together shall receive an undivided one-twelfth (1/12) of my estate, and not an undivided one-twelfth (1/12) to each of said children, with this express provision: That, if either or both shall die before arriving at the age of twenty-one years, then upon such death or deaths, his or her share, or the whole thereof in the event of both dying, shall revert to my estate, to be divided according to the provisions of my last will and testament and the first and second codicils modifying the same. And I further direct that the said undivided one-twelfth (1/12) of my estate so devised and bequeathed to the said Charles M. and Ruth E. Barber shall be held in trust by a suitable trustee appointed by the county court of Milwaukee county, for the use and benefit of the said Charles M. and Ruth E. Barber, until they shall arrive at the age of twenty-one years respectively, at which time the interest so devised and bequeathed shall be paid and turned over to each, respectively. In the appointment of the trustee I expressly prohibit the appointment of Lizzie Barber, mother of said Charles M. and Ruth E. Barber, as such trustee, it being my desire that none of my estate shall pass to, or under the control of, directly or indirectly, the said Lizzie Barber, wife of my said son Harry C. Barber. The crayon picture which I bequeathed to my son Harry C. Barber in my aforementioned last will and testament I give and bequeath to whichever of my sons Edward B. Barber or Benjamin C. Barber shall be successful in winning the same by the manner of drawing cuts. I hereby further modify my last will and testament by directing that immediately after my death my said homestead shall be sold, and the proceeds thereof disposed of according to the terms of my last will and the provisions of my said first and second codicils thereof. I, Edward Barber, hereby ratify and confirm my said last will and testament in every particular, excepting in so far as the same is modified by my first and this, my second, codicil thereto, and I hereby ratify and confirm all the provisions of my said first codicil.” The estate exceeded $100,000, and included a large number of parcels of real estate, apparently held by the testator for the purpose of sale, and not for use. The circuit court rendered judgment construing the will to give--First, the two portraits absolutely to the persons named; secondly, the household effects, library, etc., to the three surviving children, subject to the payment of one-twelfth of the value thereof, to be thereafter ascertained, to the trustees of the two grandchildren; third, that the homestead was ordered converted into personal property; that, no persons having been named to make such sale, Abbott Lawrence, the same person named as executor in the will, should be and was appointed trustee to make the same, subject to the approval of the court, and to pay the net proceeds to Edward B., Benjamin C., and Florence M. Barber, the trustees named in the fifth paragraph of the will, for immediate distribution, one-twelfth thereof to the trustee of the grandchildren and eleven-thirty-sixths thereof to each of the three children of the testator. The judgment also provided that all the residue of the estate after payment of debts, expenses, etc., is required to be assigned to, and will thereupon vest in, said Edward B., Benjamin C., and Florence M. Barber, and the survivors of them, as trustees, to sell, convey, and dispose of the same, and manage and collect profits, and pay and distribute the net income thereof annually, or oftener, and the net proceeds of the sale of the trust real estate, or any part thereof, within a reasonable time after such sale, to the persons and in the proportions following, to-wit: Ten thirty-sixths thereof to each of said children of the testator Edward B., Benjamin C., and Florence M. Barber, one-twelfth thereof to Virginia C. Williams, and one-twelfth thereof to the trustee of the two grandchildren, for the use and benefit of said grandchildren, until they respectively arrive at the age of 21 years, at which time one-half of said one-twelfth is to be paid over to each of said grandchildren arriving at majority; but if either or both of said grandchildren shall die without issue before arriving at the age of 21 years, thereupon the share of either or both dying shall be paid over by said trustee of the grandchildren to the said Edward B., Benjamin C., and Florence M. Barber, their personal representatives or assigns, in equal shares. It was further adjudged that all of the estate of the decedent is disposed of by his said will and codicils, and no part thereof or interest therein is to be considered or treated as intestate estate. The plaintiff executor appeals from that portion of the judgment awarding all of the property above the one-twelfth to Virginia C. Williams and one-twelfth to the two grandchildren to the three surviving children, and from that part which adjudges that the homestead is to be sold by a trustee, and not by the executor in his capacity as such, and from that part which adjudges that the entire estate is disposed of by the will, and no part thereof intestate. The two grandchildren, by their guardian ad litem, Robert N. McMynn, appeal from the whole of said judgment, except so much thereof as disposes of the two portraits, and so much as adjudges that the homestead be immediately sold, and the proceeds be treated as personalty, and awards to them one-twelfth thereof. The three children of the testator appeal from those parts of the judgment which award to the grandchildren one-twelfth of the value of the household effects and that part which holds them entitled to one-twelfth of the proceeds of the homestead. All such appeals were heard together.

Joshua Stark, for A. Lawrence.

Quarles, Spence & Quarles, for E. B. Barber and others.

Robert N. McMynn (C. H. Van Alstine, of counsel) guardian ad litem of C. M. Barber and others.

DODGE, J. (after stating the facts).

1. The principal error assigned upon the appeal of the executor is the holding by the circuit court that the sale of the homestead commanded by the second codicil was not to be performed by the executor in his official capacity as such, but by some trustee to be appointed by a court of equity; in accordance with which holding, Mr. Lawrence, who was in fact executor, was appointed such trustee, and was directed to pay...