Mechler v. Luettgerodt (In re Mechler's Will)

• Decision Date: 14 November 1944
• Citation: 16 N.W.2d 373,246 Wis. 45
• Parties: In re MECHLER'S WILL. MECHLER et al. v. LUETTGERODT et al.
• Court: Wisconsin Supreme Court

246 Wis. 45

16 N.W.2d 373

In re MECHLER'S WILL.

MECHLER et al.

v.LUETTGERODT et al.

Supreme Court of Wisconsin.

Nov. 14, 1944.

Appeal from a portion of the judgment of the County Court for Columbia County; E. J. Morrison, Judge.

Reversed.

Upon the petition of the executor the will of Blanche C. Mechler, deceased, was admitted to probate on June 22, 1923. The petition of the executor for a construction of the will was heard commencing December 7, 1943. Judgment construing the will was entered April 20, 1944, from which Ambrose Francis Mechler, a son of the deceased and a legatee under her will, appeals. The executor filed a cross-appeal from part of the judgment. The charitable societies moved to review that part of the judgment relating to descent of real estate.

The facts will be stated in the opinion.

Rogers & Owens, of Portage, for appellants.

Henry V. Kane, of Milwaukee (Spohn, Ross, Stevens & Lamb, of Madison, of counsel), for respondents.

Richard R. Rynders, of Madison, for executor.

ROSENBERRY, Chief Justice.

Blanche C. Mechler, the testatrix, died on May 9, 1943, at her son's residence in California, at which time she was a legal resident of Wisconsin Dells. Ambrose Francis Mechler was her only surviving child and heir. He had been a resident of California for two years. The testatrix' husband died intestate in 1928, leaving real property inventoried at $11,600. and personal property valued at $14,821.12. His widow, the testatrix, acted as administratrix of his estate and as guardian of the son Ambrose. In 1929, when the son was fifteen years old, she filed a receipt for $6,531.75 as guardian. She served as guardian until he became of age in 1934. Ambrose has been twice married. He was divorced from his first wife three years ago and married his present wife two years ago. He has no children.

The inventory filed in the Estate of Blanche C. Mechler listed real estate in Wisconsin $2,233.33 and personal property valued at $32,743.85. Notice to creditors was given. No claims have been filed and the time for filing claims had expired at the time of the hearing.

It appears that after Ambrose arrived at the age of twenty-one, the deceased and he entered into an arrangement by which the property which came from the father should be held by the mother and the son in joint tenancy. Thereafter she made her will, dated August 30, 1934. The first part of the will as to which there is no dispute provides principally for her burial, marking of her grave, for the saying of masses for herself and her deceased husband and certain small gifts to religious institutions.

After making these dispositions, the will provides:

‘To my son Ambrose Francis Mechler, I bequest all my personal property, he is to have all our Savings Accounts in all the Banks I and he have an account with as well as all our Building and Loan Certificates and Pass Books we have jointly with rights of Survivor. All the other Investments, I have, that is the principal is to be held in Trust for him, until he is 35 years of age, but he is to get the In Come of these Investments until he is 35 years old. After he is 35 years old, all the principal is to be turned over to him to have full controle of there after. Under my late husbands Probate of his Estate they have Assigned to him the Store Building 206 Broadway Wisc. Dells, Wis (Lot 7 Block 67). also the Dwelling (lot 4 & 6 Block 50) 809 Capital St. Wisconsin Dells, Wis. (F. J. Mechler)-For Administrator or Executor., I appoint Mr. A. W. Luettgrodt of Wisc Dells, Wis, he is to appoint a reliable trust Co. to hold the Principal in Turst until my Son is 35 years of age. (If at my death my son is already 35 years old, he is to be Executor of the Estate himself.)

‘If any Mortgages or Bonds or Investments are paid off, or Mature, It is to be reinvested in other first class Bonds or securities or U. S. Government Bonds.

‘I also wish my Son after he gets married, to make a Will to this affect. In Case of his death, If his widow remarries again, she is to receive no more in come or allowance from this estate, then if he has children then this estate is to be held in trust for his children, until they are of age.

‘In case of my sons death he is to have the same burial and all the same masses to be read for the repose of his soul as for my self. He then is to be buried beside his parents, and get the same Grave marker.

‘If he leaves a widow, his widow is to get an Allowance out of this estate of One Hundred dollars per month, as long as she remains his widow, and does not remarry. If she marries she looses her Allowance then all stays in trust for his children until they are of age. If at my Son's death he has no wife, or children, then after all expenses are paid. The poor Students studing for the priesthood at St. Francis Seminary, St. Francis Wis. are to share with the Orphance in this estate, after all the rest of the bequest are paid. And my Adopted Sister Mrs. Emma M.

Bonesho if alive of Amery Wis, R.R. #1 is all are to share equal shares. As well as the others mentioned.

‘Signed by Mrs. Blanche C. Mechler

‘Witnesses: Edna Francis

A. W. Bennett

‘Dated Wisconsin Dells, Wis.

‘August 30th 1934.’

Ambrose claimed upon the hearing that under the terms of the will it should be construed as follows:

A. To vest title to the residue of her estate in her son and only heir at law, Ambrose F. Mechler, at the date of her death;

B. That he is entitled to the immediate enjoyment of the cash in the banks, the Building and Loan stock, and the fund represented by the pass books;

C. That the remainder of the personal property, although the title is vested in Ambrose F. Mechler, is to be held in trust for him until he attains the age of 35, the income being paid to him annually and the principal upon his reaching that age;

D. That no precatory trust was created by the request to Ambrose F. Mechler to make a will or the provisions of the will thereafter;

E. That the cancellation of the paragraphs in the will revoked those clauses; and F. That testatrix died intestate as to the real estate owned by her.

The executor contended that the will should be construed

a. That when she used the term ‘Personal property’ she referred to items other than stock, bonds and other items classified as investments.

b. That a trust was created and the trustee holds title and performs duties until the son, Ambrose F. Mechler, reaches thirty-five years of age.

c. That the gift to the son is contingent upon his attaining the age of thirty-five years.

d. That if the son dies before attaining thirty-five years of age the corpus of the trust estate goes to others.

e. That when the son becomes thirty-five years of age the trust terminates, but in the event the son does not attain that age, the trustee continues to complete the trust and pays to the other beneficiaries as the future may determine those contingencies.

On behalf of those entitled to the charitable bequests it was contended: (a) that a valid trust was created of the residue of testator's estate during the lifetime of Ambrose, and (b) that a valid trust was created disposing of such residue upon the death of Ambrose including payment to those entitled to charitable bequests of a proportionate share of such residue if Ambrose dies without issue.

Counsel for those entitled to the charitable bequests further contend that the Wisconsin real estate does not pass as intestate property but goes to Ambrose under the terms of the will.

The trial court in a carefully prepared and helpful opinion held:

1. The bequest covering ‘personal property’ refers to personal effects, and is exclusive of notes, bonds, cash, etc.

2. All the real estate over which this court has jurisdiction discends as intestate property, in this case, to the son.

3. The portions of the will through which lines have been drawn represent cancelled portions of the will.

4. The residue of the property was given to the son in trust, the same to be handled by a trust company until the son attains the age of 35 years, after which he shall have full control thereof. The net income shall be paid to the son so long as he lives. At his death the trust estate shall be chargeable with the son's burial expenses and masses as provided for in the will, and his widow, if any he leaves, shall receive a monthly allowance of $100 so long as she lives and remains his widow. The balance of the trust fund not required for the son's widow shall be paid to the son's child or children, if any are living at his death, said payment to be made when they become of age, each to have his share as he becomes of age.

If the son dies without leaving wife or children, the trust fund, after paying the son's funeral expenses and masses, shall be paid over to the charities and the adopted sister in equal amounts. If the son dies without children, but leaving a widow, then the payment of the trust fund shall be deferred until the widow no longer qualifies to receive the $100 monthly income referred to.

The first question for consideration is what the testatrix meant by ‘personal property’. From the language employed by the testatrix, considering the circumstances presented at the time, it is our conclusion that by the term ‘personal property’ the testatrix intended to include not only her personal effects as held by the trial court but her interest in such personal property as came to her from the estate of her husband. This conclusion is supported by the arrangement which was made between the mother and the son as to the joint ownership of this property as well as from the succeeding sentence contained in the will. This sentence begins: ‘All The other Investments I have etc.’ By this the testatrix evidently meant investments which belonged to her separate estate. Such investments were to be held in trust until Ambrose arrives at the age of thirty-five years. It was apparently her own mortgages, bonds and investments as distinguished from those which...