Miller v. Douglass

• Decision Date: 05 April 1927
• Parties: MILLER ET AL. v. DOUGLASS ET AL.
• Court: Wisconsin Supreme Court

192 Wis. 486

213 N.W. 320

MILLER ET AL.

v.DOUGLASS ET AL.

Supreme Court of Wisconsin.

April 5, 1927.

Appeal from Circuit Court, Milwaukee County; Gustave G. Gehrz, Judge.

Action to construe a deed of trust by George P. Miller and others, trustees, against Julia Douglass and others. From the judgment rendered plaintiffs and guardian of certain minor defendants separately appeal. Affirmed.--[By Editorial Staff.]

On December 5, 1910, George Douglass and his wife Susan Dun Douglass, residents of Milwaukee, Wis., being the owners of certain real estate situated in the states of New York, Rhode Island and Colorado, of the approximate value of $200,000, and of personal property of the value of about $1,500,000, executed and delivered to certain named trustees and their successors a trust deed. When the trust was created, the donors had four children living, one of whom was George A. Douglass, who died February 23, 1918, leaving him surviving his widow Julia, whom he married in 1916, and who died in 1924, and Fern Douglass, a stepchild of said George A. Douglass, born in 1913. George Douglass, one of the donors of the trust, died in 1919.

The trust deed provided for the investment and reinvestment of the trust funds in either personal or real property by the trustees, and they were also authorized to convert real property into personal, and personal property into real. It was also directed that the trust continue until the death of both of the donors; and that, upon the happening of that event, the same should terminate and the trust estate be distributed.

The action herein having been brought for the purpose of obtaining a construction of the trust deed, we now here set forth the provisions involved; the vital provision requiring construction being printed in italics:

“The net income arising from said trust estate shall be paid over annually, or at other convenient periods, by said trustees, as follows: They shall pay to said George Douglass, as long as his said wife and he shall live, seventy-five (75) per cent. of the net income, and twenty-five (25) per cent. to his children, Elizabeth Douglass Clay, wife of Samuel Clay, Virginia Douglass Weller, widow of Harry B. Weller, deceased, George A. Douglass and Anne D. Dillon, wife of Clarence L. Dillon, share and share alike, and upon the death of either himself or his said wife, shall pay fifty (50) per cent. of the net income to the survivor so long as such survivor shall live, and the remaining fifty (50) per cent. of the net income to his said children, share and share alike; but the payment of at least twenty-five thousand dollars ($25,000) per annum to said George Douglass, as long as he shall live, and to his said wife, should she survive him, as long as she shall live, is hereby declared to be a first lien or claim upon the entire income of said trust.

If in any case any of his said children shall die before the expiration of this trust, the children or children's children or any such said child shall take the same interest as their parent would have taken, if living, in equal shares per stirpes. If any of his said children should die without leaving children, then the share of such child in the income and corpus shall form a part of the trust estate, the income to be divided annually among the other beneficiaries per stirpes. Each of his aforesaid children shall have the right to dispose of, by his or her last will and testament, one-half (1/2) of his or her share of said income and any accretions thereof up to his or her death, and one-half (1/2) of the prinicpal of his or her share of said trust fund and any accretions thereof up to his or her death. In that case, the interest so disposed of shall vest in the person so named in said last will and testament and in his or her heirs, executors, administrators or assigns, but the corpus shall remain in trust hereunder until the termination of this trust.

Upon the termination of this trust, the entire principal of the trust fund shall be divided and distributed among the aforesaid four children of the aforesaid George Douglass and Susan Dun Douglass, his wife, share and share alike, the children and children's children of any child taking the same share their parent would have taken if living. The share of any child, who has died without leaving children shall be added to the shares of the surviving children, per stirpes, except as to the one-half (1/2) of any such share as may have been disposed of as hereinbefore provided.”

George A. Douglass executed a last will and testament for the benefit of his wife and his stepdaughter, Fern. Under this will the trustees under the trust deed were directed until the end of the trust term to pay one-half of the income from his share for the support of his wife and stepdaughter. On the termination of the trust he further directed the payment of his share to certain trustees for the benefit of his wife and stepchild, during their lives.Miller, Mack & Fairchild, and Louis Quarles, guardian ad litem, all of Milwaukee, for plaintiffs.

Fawsett, Smart & Shea, of Milwaukee, Scott, Bancroft, Martin & MacLeish, of Chicago, Ill., and Charles F. Fawsett, guardian ad litem, of Milwaukee, for defendants.

DOERFLER, J.

Counsel for plaintiffs and the guardian ad litem of the minors other than Fern argue that, when a child makes a testamentary disposition with respect to one-half of his share, both as to the income and the corpus, the amount of the income that passes consists of that actually received at the time of the death of the child, such amount so fixed to continue thereafter to the end of the period of the trust estate, without any additions thereto coming either by reason of the death of one of the donors or of the death of other children of the donors; also that the amount of the corpus that passes under the will consists of one-half of a child's share, plus all additions to such share which have resulted from the death of another child or children prior to the time of the death of the testator.

On the other hand, respondents' counsel take the position that, if a child should die before the termination of the trust, he could lawfully by will dispose of one-half of his share of the income which he would have been entitled to receive under the trust deed if he or she had continued to live until the termination of the trust, and one-half of the share of the corpus which such child would have been entitled to receive on the termination of the trust, if he or she had continued to live until that time, without, however, any addition to the amount of either income or principal which any such child is authorized to so dispose of by will, by reason of the subsequent death of any other child named in said trust deed.

[1] When George A. Douglass died in 1918, both of the donors of trust and the remaining children were alive. Up to that time, therefore, none of the incidents had transpired which under the provisions of the trust deed would have resulted in an addition to George A. Douglass' share. The year following, however, viz. 1919, George Douglass, one of the donors, died, and, while prior to the death of the son, George A. Douglass, the children had distributed to them one-quarter of the net income, if the latter had lived until after the death of his father, there would have been distributed among the children one-half of the net income of the trust estate. The only question involved in this branch of the case consists of whether under the facts in the case George A. Douglass by his will had the right to dispose of one-quarter of 50 per cent. of the net income of the trust estate from the time of his father's death, or one-quarter of 25 per cent. of such net income. An ambiguity in the language used in the trust deed with respect to the share of the net income which George A. Douglass, the son, had a right to make disposition of requires the court in the first instance to ascertain, if possible, the true intent of the donors of the trust, as expressed in the trust deed; and in arriving at such intention we are not confined solely to the language of the specific provision contained in the trust deed under and pursuant to which a child may dispose of one-half of his share by a last will and testament, but by any and all other provisions of the instrument, together with the surrounding facts and circumstances.

[2] As we view the matter, the solution of the questions involved is centered upon the meaning of the terms “share” and “accretion.” An accretion in its broadest sense would include any addition, whether the same results by reason of the death of one of the donors or by the death of any of the other children. In its technical sense, however, the meaning of the word “accretion” is confined to an addition to the original share, resulting from the death of a child. Webster's New International Dictionary defines the word “accretion” among other things as follows: “Gain to an heir or legatee by failure of a coheir to the same succession or a colegatee of the same thing to take his share.” This has also been held to be the technical definition of the word “accretion” in the following cases, cited in brief of counsel for the respondent and of the guardian ad litem of Fern Douglass: Emeric v. Alvarado, 64 Cal. 529, 2 P. 418, 440;Hunters' Succession, 45 La. Ann. 262, 12 So. 312;Farrar v. McCutcheon, 4 Mart. (N. S.) (La.) 45. See, also, Blackstone's Commentaries (Hammond's Ed.) p. 302.

[3] A reading of the trust deed is persuasive that it was drawn by an able and experienced lawyer. The instrument is broad and comprehensive. It defines in apt language the rights of both the donors and the beneficiaries under the trust, and also in detail defines the duties of the trustees. It is a model in composition, and the use of legal terms is accurate and specific. In his experience, the writer has met with no instrument of a similar nature which more comprehensively and yet...