Otjen v. Frohbach

• Citation: 148 Wis. 301,134 N.W. 832
• Parties: OTJEN ET AL. v. FROHBACH ET AL.
• Decision Date: 20 February 1912
• Court: United States State Supreme Court of Wisconsin

148 Wis. 301

134 N.W. 832

OTJEN ET AL.

v.FROHBACH ET AL.

Supreme Court of Wisconsin.

Feb. 20, 1912.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Theobald Otjen and Retta Crowns, as executors of the will of Laura A. Frohbach, against Hugo O. Frohbach, individually and as general guardian, etc., of Harold O. Frohbach and others. From a decree construing the will, plaintiffs and defendant guardian appeal. Reversed on both appeals, and remanded, with directions.

Two appeals were taken in this action, one by the plaintiffs and the other by the defendant Hugo O. Frohbach individually and as general guardian of the defendants Harold O. Frohbach and Mabel Tenie Frohbach, from a judgment of the circuit court for Milwaukee county construing the will of Laura A. Frohbach, deceased. The testatrix, Laura A. Frohbach, was married to the defendant Hugo O. Frohbach in June, 1895. Two children, Harold O. Frohbach and Mabel Frohbach, were born to them, who at the time the will was executed were, respectively, nine and five years of age. On September 18, 1905, the testatrix obtained a judgment of divorce against the defendant Hugo O. Frohbach, and the custody of the children Harold and Mabel, then seven and three years of age, was given to their mother. On September 26, 1906, the defendant Hugo O. Frohbach married one Lucile Moyer, with whom he has since and now resides in Ashland, Or. On November 22, 1906, the testatrix made and executed the will in question. On April 28, 1907, the testatrix died, leaving her two children as her only heirs at law. Thereafter the will was duly admitted to probate. Laura W. Potter, named as one of the executors, having declined to act, letters were duly issued to Theobald Otjen and Retta Crowns, the other executors named on the will. Hugo O. Frohbach was duly appointed general guardian of the person and estate of the two children. The estate of the testatrix consists of real and personal property in Wisconsin of the value of about $40,000.

The will, omitting the formal portions, is as follows:

“II. I give and bequeath to my daughter, Mabel Tenie Frohbach, all my silverware, jewelry and personal ornaments, and to my son, Harold Otto Frohbach, the gold watch which I had from my father and all the rest and residue of my property, real or personal, in possession or expectancy, I give, devise and bequeath to my said son and daughter, or to the survivor of them, share and share alike during their natural lives and during the life of the survivor of them with the right to use and consume such part of his or her share as either of them shall find necessary, and if either my said son or my said daughter should after my decease die without issue his or her share shall go to the survivor of my said children for life, and if both my said son and daughter die after my decease leaving no issue of either living at the time of the death of the last survivor then the whole residue and remainder of my estate shall go over to the persons and in the proportions specified in the next paragraph hereof. If either my said son or my said daughter shall die before my decease or after my decease leaving issue, such issue shall take absolutely all the share which the parent of such issue had at the time of the death of such parent or such share as the said parent would have had if he had survived me, as the case may be. If neither my said son nor my said daughter nor any issue of either survive me, then absolutely to the persons and in the proportions named in the next paragraph hereof.

III. In case (1) that neither my said son nor my said daughter nor any issue of either survive me, (2) or in case either or both my said son and daughter do survive me, but after my death and at the death of the last survivor of my said son and daughter there be no issue living of either my said son or my said daughter then and in either of these two cases I give, devise and bequeath as follows:

(a) One-third of all my property to my stepmother, Laura W. Potter, if she be then living, if she be not then living said one-third to my half sister, Mabel Bjorkquist, and if neither Laura W. Potter nor Mabel Bjorkquist be then living to the heirs at law of Mabel Bjorkquist.

(b) One-third of all my property to my aunt, Retta Crowns, of Port Washington, Wisconsin, if she be then living, and if she be not then living, said one-third to the heirs at law of said Retta Crowns.

(c) One-third of all my property to my uncle, George Ingersoll, if he be then living and if he be not then living said one-third to his two eldest children, Clara Ingersoll and George B. Ingersoll share and share alike, if they be then living, but if either said Clara or George be then dead to their or either of their living issue in the same proportion, and if neither said Clara or George nor the issue of either be then living, then in that case to the heirs at law of my said uncle, George Ingersoll.

IV. If neither my son Harold nor my said daughter Mabel nor any issue of either shall survive me, or in case both my said son and daughter do survive me, but after my death and at the death of the last survivor of my said son and daughter, there be no issue living of either my said son or my said daughter, then in either of these two cases I give, devise and bequeath as a specific legacy to Mary E. Selmer, of Port Washington, Wisconsin, if she be then living, or to her issue if she be not then living, and have issue then living, the sum of two thousand dollars, to be paid within six months from my death, but if said Mary E. Selmer or her issue be not then living, then this two thousand dollar legacy shall lapse.

V. I do hereby nominate and appoint Laura W. Potter as guardian of the person and estate of my said two children if I die during their minority, and if the said Laura W. Potter does not survive me then and in that case I do hereby nominate and appoint said Retta Crowns of Port Washington, Wisconsin, as guardian of the person and estate of my two children in the like case.

VI. I do hereby nominate and appoint the said Laura W. Potter, the said Retta Crowns and Theobold Otjen and the survivors or survivor of them the executors of this my last will and testament and I request that neither of them be required to give bond as such executors.

In witness whereof I have hereunto set my hand and seal this 22d day of November, A. D. 1906.

Laura A. Frohbach. [Seal.]”

The circuit court found substantially the facts as above set forth, and also the following conclusions of law:

“That it was the intention of the said Laura A. Frohbach, as disclosed by her said last will and testament, to create a life estate in her children, with remainders over to their issue, if any, and, in the event of her children dying without issue, then after paying a legacy of $2,000 to Mary E. Selmer, if living and to her issue in case of her death, the estate was to be distributed equally between Laura W. Potter, Retta Crowns, George Ingersoll, and their respective heirs in case of their death.

That in and by the terms of the said will of the said Laura A. Frohbach a valid trust was created for and during the life of the said Harold O. Frohbach and Mabel Tenie Frohbach, and the survivor thereof.

That in and by the terms of the said will of Laura A. Frohbach, deceased, there was no valid appointment of a testamentary guardian for the said Harold O. Frohbach and Mabel Tenie Frohbach.

That the executors named in said will took and now have the legal title to the property therein described for and during the said trust term upon the trust to care for and manage the estate devised, to receive the rents, income, and profits thereof, and out of the same to pay all taxes, costs, repairs, and expenses incident to managing the said estate, and the net amount of such rents, income, and profits to be divided equally between the said Harold O. Frohbach and Mabel Tenie Frohbach, share and share alike, or the heirs of either of them, as the case may be, until the expiration of the trust term.

Let judgment, construing said will in accordance with these findings, be duly entered, with costs to be paid out of the estate of the said deceased.”

Kronshage, Goff, Fritz & Hannan and Otjen & Otjen (Guy D. Goff and S. J. McMahon, of counsel), for plaintiffs.

McElroy & Ferguson and Edgar L. Wood, for defendants.

KERWIN, J. (after stating the facts as above).

The appeals in this action present two main questions for determination: (1) The character of the estate devised and bequeathed to the children by paragraph 2 of the will; and (2) what effect shall be given to paragraph 5 of the will, which undertakes to appoint a general guardian of the person and estate of the children of the testatrix during their minority.

The court below, upon the facts which are undisputed, concluded that it was the intention of the testatrix, as disclosed by her will, to create a life estate in her children with remainder over to their issue, if any, and, in the event of the death of her children without issue, then to others specified in the first conclusion of law set forth in the statement of facts; that in and by the terms of the will a valid trust was created for and during the life of the children of the testatrix, Harold O. and Mabel Tenie Frohbach, and the survivor thereof. On the part of the defendant it is contended that, by the terms of the will coupled with the surrounding circumstances, it is clear that no trust was created, but that the property passed unhampered to the children during their lives, with power to consume the same as they might deem necessary, hence they had absolute power to convey a fee title, and were vested with the possession and control of the property; while on the part of the plaintiffs it is argued that a trust was created.

Both parties rely upon the same facts to support their respective contentions. It is also conceded by all parties that the intention of the...