Pabst v. Goodrich

• Decision Date: 15 October 1907
• Citation: 133 Wis. 43,113 N.W. 398
• Parties: PABST ET AL. v. GOODRICH ET AL.
• Court: Wisconsin Supreme Court

133 Wis. 43

113 N.W. 398

PABST ET AL.

v.GOODRICH ET AL.

Supreme Court of Wisconsin.

Oct. 15, 1907.

Appeal from Circuit Court, Milwaukee County; John C. Ludwig, Judge.

Action by Gustav G. Pabst and another, individually, and as surviving executors of Frederick Pabst, deceased, against Maria Goodrich and others, to construe a will. From a judgment construing the will, plaintiffs individually and certain of the defendants appeal. Affirmed.

This action was brought in the circuit court for Milwaukee county to construe the will of Frederick Pabst, late of the city of Milwaukee, Wis. The action was commenced by Gustav G. Pabst and Frederick Pabst, Jr., individually and as surviving executors under the last will and testament of Frederick Pabst, deceased, against Maria Goodrich, Emma Soehnlein, Edith Soehnlein, and Beatrice Soehnlein, children of Emma Soehnlein, and Maria Pabst, commonly called Elsbeth Pabst. The complaint sets out the death of Frederick Pabst January 1, 1904, and the execution of his will July 17, 1903; that letters testamentary thereon were issued February 3, 1904, to the plaintiffs Gustav G. Pabst, Frederick Pabst, Jr., and Maria Pabst; that Frederick Pabst left, him surviving, next of kin, Maria Pabst, his widow, who died October 3, 1906, Gustav G. Pabst and Frederick Pabst, Jr., his only sons, Maria Goodrich, his daughter, who at the time of the testator's death had issue living, Emma Soehnlein, his daughter, who at the time of testator's death had issue living, to wit, Edith Soehnlein and Beatrice Soehnlein, and Emma Maria Pabst, granddaughter, commonly called Elsbeth Pabst, and only issue of deceased daughter, Elsa Von Ernst. The complaint further alleges that after providing for gifts made to Maria Pabst, widow of testator, there remained in the hands of the plaintiffs, as surviving executors, a large amount of real and personal property held under the trusts of said will, and that the following questions have arisen touching the proper construction of the will: First. Whether, since the death of Maria Pabst, widow of said deceased, the annual income of the remaining part of testator's estate, mentioned in the sixth article of his will, shall be paid to said Elsbeth Pabst during her life, and to her issue in case of her death, as provided in the sixth article of said will, or divided in equal shares among the testator's children, Gustav G. Pabst, Maria Goodrich, Frederick Pabst, Jr., and Emma Soehnlein, or their respective issue, until said Elsbeth Pabst shall arrive at the age of 21 years, as provided in the third article of said will. Second. What number of shares of the capital stock of the Pabst Brewing Company represents a book value of $1,000,000, according to the regularly kept books of said Pabst Brewing Company, as provided in the fourth article of said will? Third. Whether the stock dividend hereinafter mentioned is principal or income of the trust estates created by said will respectively. Fourth. Whether the executors, under the authority to invest conferred by the ninth article of said will, have power to make the investments hereinafter mentioned.

The first and second items of the will gave the widow certain property and the annual sum of $50,000 to be paid to her during her life. The will further provides:

“Third. Subject to the above provisions, I give, devise and bequeath all the property which I may have at the time of my decease, or be in any way interested in, to my executors, in trust, during the life of my said wife, the trustees out of the income of said property to pay her said sum of fifty thousand dollars ($50,000) per annum; and also out of said income or said property to them conveyed to pay all proper expenses for the suitable support and education of my granddaughter and adopted daughter, Emma Maria Pabst, commonly called Elsbeth Pabst, until she shall arrive at the age of twenty-one years, and to divide the net income of said property after said payments, annually or at such times as may be convenient, in equal shares, among my children Gustav G. Pabst, Maria Goodrich, Frederick Pabst, Jr., and Emma Soehnlein, or their respective issue; in case of the death of any of them, such issue to take a parent's share by right of representation. In case any of my said children shall die without leaving issue, such income shall be divided among the remaining children or their issue.

At her arrival at the age of twenty-one years said Elsbeth shall take an equal share with the other of said children in said distribution of income, subject to the same conditions above provided.

Fourth. Upon the decease of my said wife the entire estate shall be divided into as many parts as there are children then living counting the living descendants of any deceased child as the representative of its parent in case of the latter's decease. Said parts shall be equal, except that there shall be transferred to one of said parts, designed for the benefit of my granddaughter, Elsbeth, as provided in paragraph sixth of this instrument, such number of shares of the capital stock of the Pabst Brewing Company as shall represent a book value of one million dollars, according to the regularly kept books of said Pabst Brewing Company, so that said part shall exceed each of the other parts by the amount of said shares of stock. The reason for this discrimination is that I transfer, by way of gift, a like amount in book value of said stock for the benefit of each of my children, Gustav G. Pabst, Maria Goodrich, Frederick Pabst, Jr., and Emma Soehnlein, contemporaneously with the making of this will.

One of said equal parts shall be paid over and transferred to my son, Gustav G. Pabst, or his heirs; one to my daughter, Maria Goodrich, or her heirs; and one to my son, Frederick Pabst, Jr., or his heirs.

Fifth. In case my said daughter, Emma Soehnlein, shall, at the time of the decease of my wife, have a child or children living, such child or the oldest of such children being not less than ten years of age, then and in such case said Emma Soehnlein shall also be entitled to and receive one of said equal parts of my estate.

If at the time of the decease of my wife said Emma Soehnlein shall have no living issue, or her issue shall not have attained the aforesaid age, then said part of my estate shall continue to be held in trust by my executors and trustees said Emma receiving the income thereof until a child of said Emma, either living at the time of my wife's decease, or thereafter born to her, shall arrive at the age of ten years, whereupon, such child being living, said Emma shall become entitled to and receive said one part of my estate.

In case said Emma shall not have a child of said age at the time of my wife's death, and no child of hers shall, after that time, reach said age, then said part of my estate shall continue to be held in trust by my executors and trustees during the life of said Emma, and the income thereof annually paid to her, and the body or principal of said part shall, in such case, upon her decease, go in equal shares to my other children or their respective issue in the same manner and subject to the same conditions herein provided in reference to the other parts of my estate.

In case said Emma shall die leaving a child or children before the transfer to her of said part of my estate pursuant to the provisions hereof, the net income of said part shall thereafter be paid to such child or children in equal shares until the oldest thereof shall attain the age of twenty-one years, whereupon said part shall be transferred and paid over to such child or children in equal shares. In case all of said children shall die before reaching said age and without leaving lawful issue, said part of my estate shall be disposed of in the same manner as if said Emma had died without leaving surviving issue. If issue of any child survive it shall take by representation what its parent would have taken if living.

Sixth. The remaining part of my estate, being the one increased by the transfer thereto of shares of stock as hereinbefore provided, shall, upon the decease of my wife, continue to be held in trust by my executors and trustees, provided said Elsbeth be living at that time; and the annual income thereof shall be paid to said Elsbeth during her life.

In case of said Elsbeth's death without leaving issue surviving her, said part of my estate shall be added in equal shares to the remaining shares thereof and disposed of as parts thereof as hereinbefore directed.

If said Elsbeth shall have died prior to the decease of my wife, leaving a child or children who shall survive my wife; or if she shall die after my wife's death, leaving a child or children--then also said part of my estate shall continue to be held in trust by my executors and trustees, and the annual income thereof shall be paid to such issue in equal parts for the term of twenty-one years after the death of said Elsbeth, and shall thereupon be paid to such child or children and the issue of any of them who may have died, according to the rule of representation.

In case of the death of said Elsbeth without leaving issue surviving her, or the extinction of her issue prior to the expiration of twenty-one years from the time of her decease, said part of my estate shall be added in equal shares to the other parts as herein directed and pass to my other said children or their respective issue or heirs, subject to the same conditions and limitations herein prescribed as to said other parts.

In case said Elsbeth shall attain the age of forty-five years and shall then have living a child or children, the whole of said part of my estate shall pass and be transferred to her.

Seventh. In making distribution both of the income and the principal of my estate as above directed, advancements heretofore made by me to any of my children and charged against them on my private books shall be taken into account and charged...