Madison Trust Co. v. Holmes (In re Holmes' Estate)

• Citation: 233 Wis. 274,289 N.W. 638
• Parties: In re HOLMES' ESTATE. MADISON TRUST CO. v. HOLMES.
• Decision Date: 16 January 1940
• Court: United States State Supreme Court of Wisconsin

233 Wis. 274

289 N.W. 638

In re HOLMES' ESTATE.MADISON TRUST CO.

v.HOLMES.

Supreme Court of Wisconsin.

Jan. 16, 1940.

Appeal from a judgment of the County Court of Dane County; George Kroncke, Judge.

Reversed.

Proceedings for construction of the will of George B. Holmes, deceased, instituted by the Madison Trust Company, trustee under said will of a trust created thereby, against Glenn C. Holmes, individually and as executor of the will of Lillian B. Holmes, widow of the said deceased. From a portion of the judgment construing the will in favor of the defendant and adversely to the interests of the remaindermen for whom the plaintiff is trustee and decreeing that conveyances to the defendant by the widow of the deceased of three parcels of land vested the fee and absolute ownership thereof in the defendant, the plaintiff appeals. The facts deemed material are stated in the opinion.Sanborn, Blake & Aberg and Robert W. Arthur, all of Madison, for appellant.

James H. Wegener and Franklin W. Clarke, both of Madison, for respondent.

FOWLER, Justice.

George B. Holmes died testate, leaving surviving him as his heirs, his widow, Lillian B. Holmes, and an adopted son, the defendant, Glenn C. Holmes. His will was duly admitted to probate February 5, 1932. He left personal property inventoried at $2,229.75 and a homestead and three other parcels of land, all of which except the homestead, less expenses of administration and a $50 legacy to a cemetery association, was by final judgment of the county court formally assigned to the widow “in accordance with the terms of the will.”

On January 7, 1939, the plaintiff, as trustee of an express trust created thereby, filed a petition for construction of the will. The provisions of the will which are material are as follows:

“Third, To my wife, Lillian B. Holmes, I give, devise and bequeath all the rest, residue and remainder of my estate, real or personal wherever situated, to have and to hold for the term of her natural life, to use and spend the income thereof and to use and spend so much of the principal thereof as she shall see fit, hereby giving and granting unto my said wife, full power and authority to sell or convert into cash any of the real estate or personal property of which I may die seized or possessed and to invest and re-invest the proceeds thereof, it being my intention to give my said wife full and complete authority to hold, manage, use and dispose of my entire estate in whatever manner she shall see fit without being in any way responsible to any person for her use and management of the said property and without her being required to make any accounting whatsoever of her use of the said property.

“Fourth, *** And in case my said wife shall survive me, and shall not have disposed of my said homestead during her lifetime, then, at the death of my said wife, I give and devise my said homestead to my said adopted son Glenn C. Holmes, subject to whatever mortgage or mortgages I may have placed thereon in my lifetime and to whatever mortgage or mortgages my said wife may have placed thereon between the time of my death and the time of her death.

“Fifth, *** and in case my said wife shall survive me, I will and direct that whatever portion of my estate shall remain unexpended in her hands upon her death, excepting my said homestead, shall be turned over to the said Madison Trust Company, as trustee, and I direct the said trustee to manage my said estate in trust” to pay the income thereof to a cousin, during her life, and to her daughter after the cousin's death until she arrived at the age of thirty years and then to pay to her the principal.

“Sixth, I nominate and appoint my said wife Lillian B. Holmes, as executor of this will, and in case she shall not survive me I nominate and appoint the Madison Trust Company as executor of this will, and I direct that either executor herein named be permitted to serve without bond, and I grant to either of the executors herein named full power to sell and convert into cash any of the real estate of which I may die seized.”

At the death of the widow there was remaining undisposed of by the widow the homestead and certain personal property left or derived from property left by the deceased. The homestead was by the judgment appealed from decreed to have become vested under paragraph fourth of the will in the defendant, and the remaining personal property to have become vested in the appellant for administration under paragraph fifth. With this portion of the judgment there is no complaint. The controversy is over a portion of the judgment which determined that the will passed to the widow the fee of the three parcels of land other than the homestead and validated three deeds of the three parcels executed by the widow to the defendant Glenn C. Holmes under the following facts: Numbering the three parcels of land as (1), (2) and (3), No. (1) appraised at $650, was conveyed without any valuable consideration;No. (2) valued at $1,700 was conveyed without any valuable consideration; No. (3) valued at $6,500 was conveyed in 1935 without any consideration being paid or promised at the time of its conveyance. A $2,700 mortgage to secure a loan of $2,700 was negotiated by the defendant in 1937 and signed by both the widow and himself as was the mortgage note. The money raised on this mortgage was paid to the defendant and expended by him for care and support of the widow. The defendant has paid the interest on the mortgage and has made a principal payment of $100 thereon.

The trial judge first filed a decision that construed the will as giving to the widow a life estate in the property of the deceased, with power to devote such portion thereof to her own use and benefit as she might wish, held the plaintiff trustee entitled to the portion of the property which she did not so use to be administered according to the trust, and held the defendant liable to account for the income received from the real estate conveyed by the widow to him less the value of improvements placed thereon by him and expenses of administration and expenses of the widow during sickness. After receiving briefs and reconsidering the matter the trial judge filed another decision by which he decided that In re Will of Zweifel, 194 Wis. 428, 216 N.W. 840, wherein the validity of transfers by a widow made under similar circumstances was involved, and sec. 232.08, Stats., as therein applied, compelled him to hold that the will gave a fee in the land to the widow and empowered her to convey it without consideration if she so wished and thus validated her conveyances to the defendant.

[1][2] The meaning and effect of a will must be derived from its four corners and any attending circumstances that throw light upon the intent of the testator. This rule is so firmly fixed and understood that no citation of authority is needed to support it. The intent of the testator, whenever it can be drawn as above stated, must determine and control any power of disposition given in the will and sec. 232.08, Stats., has no bearing upon the construction of the will.

[3][4] Applying the rule above stated to the instant will we consider that the decision of the county court as first reached as to the construction of the will was correct. In determining the testator's intent all the terms of the will should be considered-not only those tending in themselves to indicate an absolute and unlimited power of disposition, but those tending to indicate a limited power in that respect-and such conflicting terms as exist should be so harmonized or considered in connection with each other as to express the real intent of the testator.

So considering all the terms of the instant will we consider that it appears that the testator made all the provision for the defendant that he wished to make, and that as he made provision for his cousin and her daughter, he manifested intent that the provision he made for the latter should not be diverted from them to the defendant, and indicates that he did not intend that his widow might frustrate and nullify his preference as to where his property not expended for her benefit should go by giving it to the defendant.

[5][6][7] Other terms of the will indicate that the testator did not intend to give the widow power to give away the property. The word “use” in the will should be given effect according to its common and primary meaning. “To use” is to make use of, to put to one's use or benefit, to use up, to consume, to employ to one's service or benefit, to use as to derive service therefrom. Giving the use of a thing, does not give the thing itself, but implies that the thing is to be held and employed for the benefit or enjoyment of the beneficiary. A great number of cases to this general effect are cited in Words & Phrases, 1st, 2d, 3d, 4th and 5th Series, many of them referring to the meaning of the word in devises of real estate to the use of the devisee. So construing it, the will manifests the intent of the testator that his wife should have the right to the fullest disposition of the property necessary to satisfy her needs or her wishes so long as the proceeds were used by herself or for her for that purpose. The will as a whole manifests intent to secure to the widow the means to provide for her needs and to satisfy her wants and desires. The carrying out of that intent negatives the idea that she might destroy that means by giving the entire property to a...