Sawtelle v. Ripley

• Decision Date: 02 May 1893
• Citation: Sawtelle v. Ripley, 85 Wis. 72, 55 N.W. 156 (Wis. 1893)
• Parties: SAWTELLE v. RIPLEY.
• Court: Wisconsin Supreme Court

85 Wis. 72

55 N.W. 156

SAWTELLE

v.RIPLEY.

Supreme Court of Wisconsin.

May 2, 1893.

Appeal from circuit court, Waukesha county; A. Scott Sloan, Judge.

Action by Mary A. G. Sawtelle against Mark Ripley as executor and others for the construction of a will.Judgment was rendered declaring one clause of will void, and defendantexecutor appeals.Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Action to construe the will of Ward Witham, deceased.Plaintiff is a granddaughter of deceased, and named as a legatee of $500 in the will.She sets forth in her complaint that doubt and uncertainty has arisen as to the meaning and effect of the fifth clause of the will, and prays for a construction of the same.The appellant, as executor, answered, admitting the general allegations of the complaint as to the relationship of the parties, the making and probate of the will, and that doubt and uncertainty had arisen as to the construction of the fifth paragraph thereof and the duties of the executor thereunder, alleging that plaintiff is not interested in the construction of the same in any way, and also prayed for a construction of said paragraph, and that the same be declared legal and valid.The defendantLorenzo Witham answered separately, alleging that said fifth paragraph was void for uncertainty, and that the sum bequeathed thereby became a part of the residuary estate.The other defendants, who are the remaining legatees named in the will, did not appear.It appeared that the testator died January 22, 1888, leaving a will, which was probated February 23, 1888, and which, after certain bequests, among which was a bequest of $500 to the plaintiff, his granddaughter, contained the following provision: “I give, devise, and bequeath to my executors the sum of five thousand dollars, in trust nevertheless for following uses and purposes: Said sum is by my said executors to be invested in some good interest-bearing securities, and the net yearly income thereof shall be used and applied by my said executors to the support, maintenance, and education, or aiding in the support, maintenance, and education of such indigent orphan children under the age of fourteen years, in the said county of Rock and state of Wisconsin, as in the judgment of my said executors may be most needy and deserving.Said income of said five thousand dollars to be used and applied as above until the year nineteen hundred, and then the said sum of five thousand dollars is to be given to such indigent orphan children, in Rock county, Wisconsin, as my executors shall think most needy and deserving.”There was also a residuary clause covering all the rest, residue, and remainder of his estate, real and personal, but plaintiff was in no event a beneficiary under the residuary clause.Mark Ripley and N. N. Jackman were named in the will as executors.Before probate of the will, Jackman duly declined to act as executor, and Ripley accepted and qualified alone, and is still acting as executor.The plaintiff was paid her bequest of $500 on becoming 21 years of age, which was after the commencement of this action.Upon these factsthe circuit court concluded (1) that plaintiff was a proper party to bring this action; (2) that the execution of the trusts of the will by Ripley alone is legal and valid; (3) that the fifth paragraph of the will is void for indefiniteness and uncertainty; (4) that the $5,000 named in said fifth paragraph becomes a part of the residuary estate; (5) that the taxable costs and disbursements of all parties, and $50 to the attorney of each party appearing, be paid out of the estate and from said $5,000 fund.The appellant excepted...