Saxton v. Webber

• Decision Date: 06 December 1892
• Citation: 83 Wis. 617,53 N.W. 905
• Parties: SAXTON ET AL. v. WEBBER ET AL.
• Court: Wisconsin Supreme Court

83 Wis. 617

53 N.W. 905

SAXTON ET AL.

v.WEBBER ET AL.

Supreme Court of Wisconsin.

Dec. 6, 1892.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

Action by Harriet A. Saxton and Charles A. Saxton against Albert G. Webber and others for partition and construction of a will. From a judgment declaring the rights of the parties, plaintiffs appeal. Reversed.

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

It appears from the record that November 15, 1884, one William A. Webber, at the age of about 66 years, died, domiciled in Milwaukee, leaving him surviving a widow, Mary H., who was at the time about 67 years of age. That he and said Mary H. were at the time the parents of five children, to wit, four sons, aged, respectively, as follows, to wit, Albert G., 43; William F., 41; Wilkie A., 33; and Harry J., 26; and also one daughter, Harriet A., 24, who had married the plaintiff Charles A. Saxton in September, 1880, but that she had never, up to that date, had any child. That the said William A. also left him surviving two brothers, each having a child or children living; and a child or children by a deceased sister. That at the time of the death of the said William A. Webber he was seised of considerable personal property and real estate, hereinafter described. That he left as his last will and testament a paper writing, executed October 16, 1884, and the same was admitted to probate January 17, 1885, and in and by which he appointed his widow, the said Mary H., sole executrix of his will, and she qualified as such January 23, 1885, and thereupon took upon herself the several trusts mentioned in said will; and in and by which will he gave and bequeathed to the said Mary H., her heirs and assigns, all his personal estate, money, rights, credits, and effects, whatever and wherever, subject to the payment of his debts, funeral expenses, and charges of administration. That he also gave and devised all his real estate, whatever and wherever, to his said wife, Mary H., for and during the term of her natural life, but in trust to take care of, manage, and to receive the rents, issues, and profits thereof, and to pay and distribute the net income therefrom quarter-yearly as follows:To the said Harriet A. Saxton, the entire net income from the north 35 feet of lot 5 in block 90, and the north half of lot 5 in block 88, in the Seventh ward of the city of Milwaukee; and lot 16 in Hubbard's subdivision of the N. W. 1/4 of section 9, town 7, range 22, in the county of Milwaukee; and also one sixth of the net income from all the rest of his real estate; and to his said wife, Mary H., and his said sons, Albert G., William F., Wilkie A., and Henry J., the remaining five sixths of the net income from the same, equally,--that is to say, one sixth of such income to each of them. That said will also contained, as the third clause thereof, the following provisions, to wit: “ Third. I give and devise all my real estate, whatever and wherever, from and after the decease of my said wife, as follows, to wit: To my said daughter, Harriet A. Saxton, her heirs and assigns forever, I give and devise, as aforesaid, the said north thirty-five feet of said lot 5 in block 90, and the said north half of lot 5 in block 88, in the Seventh ward of said city of Milwaukee; and said lot 16 in Hubbard's subdivision of the northwest quarter of section 9, town 7, range 22; and the undivided sixth part of all the rest and residue of my real estate, whatever and wherever; but, in case of her decease without issue, then, and in that case, all the real estate so devised to her is to descend to my heirs at law living at the time of her decease, unless her said husband shall survive her, in which case he shall be entitled to the same for and during the term of his natural life in case he shall not marry again, and upon his decease or marriage the same shall descend to my heirs at law living at the time of his decease or marriage. To each of my sons Albert G. Webber, William F. Webber, and Wilkie A. Webber, his heirs and assigns forever, I give and devise, as aforesaid, the one undivided sixth part of the rest and residue of all my real estate, whatever and wherever, one undivided sixth part of which is given to my daughter, as aforesaid. To such person or persons as my said wife may convey or devise the same, to his or their heirs and assigns forever, I give and devise, as aforesaid, the one undivided sixth part of the said rest and residue of my said real estate. And to such person or persons as the county court or court or judge having probate jurisdiction in the county of Milwaukee may appoint trustee of the same I hereby give and devise, as aforesaid, the remaining one undivided sixth part of the said rest and residue of my said real estate, in trust, nevertheless, to take care of and manage, and to receive the rents, issues, and profits thereof, for and during the term of the natural life of my son Harry J. Webber, and to pay the net income therefrom to my said son Harry J. Webber quarter-yearly for and during the term of his natural life, and upon his decease to convey the said trust estate to his issue then living in fee, or, in case he shall die without issue, then, and in that case, the same to descend to my heirs at law then living in fee.”

It further appears from the record that February 6, 1886, the said executrix had paid the debts and expenses of settling said estate, and the county court, by its final order or judgment bearing date on that day, assigned and set over the residue of the property belonging to said estate according to the terms of said will; that is to say, the personal property to the widow (the said executrix) absolutely, and all of said real estate undivided to the said Mary H. for her natural life, upon the trusts mentioned in said will; that February 8, 1886, letters of trust were issued to the said Mary H. by the said county court, and that she thereupon took possession and charge of the residue of said property, including the premises mentioned, and held and managed the same, receiving the rents, issues, and profits thereof, and, after paying the expenses of the trust, divided, distributed, and paid over the balance and remainder of said income, rents, issues, and profits, from time to time, to the parties entitled thereto, in the proportions directed by said will; that August 25, 1886, the said son William F., who never had any child, and was never married, domiciled in Milwaukee, died intestate; that January 15, 1890, the said Mary H. died, domiciled in Milwaukee, leaving a will, executed January 17, 1889, and which will was duly admitted to probate May 1, 1890; that, after giving certain bequests to certain collateral kindred, the said Mary H. gave to the said Harriet A. in and by said will $1,000 and certain household furniture; that the balance of her property she therein divided equally among her three sons Albert G., Wilkie A., and Harry J., to the latter, with a certain proviso; that May 14, 1890, this action was commenced by the said Harriet A. and her husband for a partition of said real estate, and for a construction of the will of the said William A. Webber; and the complaint alleged, in effect, the facts stated; that Albert G. and wife and Wilkie A. and wife answered, and, in effect, admitted all the allegations of the complaint; that the said Harry J. and wife and guardian answered at length.

Upon the trial the court found as matters of fact, in effect, the facts stated; and as conclusions of law the court found, in effect: (1) That the said Albert G., Wilkie A., Henry J., and Harriet A. are tenants in common of the premises above and in said complaint described. (2) That the said Harriet A. is not entitled to the ownership in fee simple of all the real property in and by said will of her father devised to her conditionally. (3) That the third clause of the will of said William A. (copied in full above) is illegal and void as to the estate therein devised to the said Harriet A., because in violation of the statute against perpetuities, and because the whole third clause of the will constitutes a single scheme for the disposition of the real estate of the testator after the death of his widow; that the whole of said third clause is invalid, and the land affected by it or mentioned in that clause--that is to say, all the real estate of which the testator died seised--must descend and go to the heirs at law, the same as if no will had been made. (4) That the first and second clauses of the will are legal, valid, and effectual, and had in fact been executed, and that the assignment of the estate made by the court of probate must stand. (5) That the one-fifth share or interest in said real estate, which, under the decision last hereinabove made in paragraph 4, vested in the said William F. Webber, upon his death intestate, unmarried, and without leaving issue, descended to and was inherited by his mother, the said Mary H., and the same undivided one-fifth part was devised by the said Mary H. by her said will, and was thereby passed to, and is now vested in, the said defendants Albert G., Wilkie A., and Henry J., in equal shares or proportions, as follows: To Albert G., one-third part thereof in fee simple; to Wilkie A., one-third part thereof in fee simple; to Henry J., one equal third part thereof, subject to the proviso contained in the fifth clause of the will of the said Mary H., to wit, Henry J., being incapable, shall only receive the interest of his share during his life, and his wife, Annie, to receive one third of his share if she survives him. From the judgment entered upon such findings, the plaintiffs bring this appeal.

David S. Ordway, for appellants.

Shepard, Haring & Frost, H. L. Buxton, and Nath. Pereles & Sons, ( Edward W. Frost, of counsel,) for respondents.

CASSODAY, J., ( after stating the facts.)

The testator, William A. Webber, by his...