Schilling v. Schilling (In re Schilling's Will)

• Decision Date: 12 June 1931
• Citation: 205 Wis. 259,237 N.W. 122
• Parties: IN RE SCHILLING'S WILL. SCHILLING ET AL. v. SCHILLING ET AL.
• Court: Wisconsin Supreme Court

205 Wis. 259

237 N.W. 122

IN RE SCHILLING'S WILL.SCHILLING ET AL.

v.SCHILLING ET AL.

Supreme Court of Wisconsin.

June 12, 1931.

This is an appeal from an order of the County Court for La Crosse County, dated August 20, 1929, construing the last will and testament of Isidor Schilling, deceased; John F. Doherty, County Judge.

Petition by Ella Schilling and others against Adolph J. Schilling and another, as executors and trustees of the last will and testament of Isidor Schilling, deceased, for a construction of the will. From the order construing the will, the executors appeal.--[By Editorial Staff.]

Reversed with directions.

See, also, 237 N. W. 130.

The facts are not in dispute. Isidor Schilling died on the 22d day of January, 1927, leaving a last will and testament which was thereafter duly admitted to probate in the county court of La Crosse county. He left personal property amounting to $106,805.65, and real estate appraised at $146,000. He left him surviving four sons, one of whom was Ernest Schilling, since deceased. The will first made certain bequests, including $20,000 to each of his sons, other than Ernest, to whom he had advanced in his lifetime, according to paragraph 7 of the will, sums of money in payment of the debts and obligations of Ernest, which the testator believed equaled the sum of $20,000. All of the remainder of his estate, both real and personaland wherever situated, was given, granted, bequeathed, and devised to Gustav H. Schilling and Adolph J. Schilling, as executors and trustees of his estate, in trust for his four sons and their families. In each case the will provided what should be done with each share of the principal and income in case of the death of a son. The provisions of the will, material to this controversy, are as follows:

“8. All of the remainder of my estate, both real and personal and wherever situated, I give, grant, bequeath and devise to my trustees hereinafter named and to their successors, in trust, however, for the following purposes, to-wit:

(a) I hereby authorize and direct my trustees to provide for the perpetual care and maintenance of the lot and grave which I shall be buried in and the lot and graves in which the deceased members of my family have been buried and for such purpose, they shall make the necessary contract and provide such funds as they shall deem sufficient.

(b) I authorize and direct my trustees to distribute the net income of the estate herein left in trust, annually or at a shorter interval if convenient, to my sons, Gustav H. Schilling, Adolph J. Schilling, Albert Schilling and Ernest Schilling, share and share alike. * * *

(f) In case of the death of my son, Ernest Schilling, the income above provided for him shall be paid to his wife, Ella Schilling, during her natural life or so long as she shall remain the widow of said Ernest Schilling, to be used by her as she shall see fit for the support of herself and children provided that said income to be paid to her shall not exceed one hundred and fifty ($150) per month and any income above that amount shall accumulate for the benefit of that portion of my estate herein put in trust for said Ernest Schilling and his issue; and in case of the death of the wife of said Ernest Schilling or in case she shall again remarry, the entire income from said share shall be given to the children of said Ernest Schilling, one-fourth of said income to be paid to Alice Schilling, daughter of said Ernest Schilling and three-fourths thereof to be paid to William Schilling son of said Ernest Schilling.

The share of my estate herein left for the benefit of Ernest Schilling and his family shall continue in trust during the natural lives of said Ernest Schilling and Ella Schilling, his wife, or in case of their death until the youngest of their children shall be twenty-one years of age. When both Ernest Schilling and Ella Schilling, his wife, are dead, or when Ernest Schilling is dead and his wife shall remarry, and the youngest of said children shall be twenty-one years of age, then my trustees shall distribute said share of my estate as follows: To Alice Schilling, daughter of said Ernest Schilling, two thousand dollars ($2,000.00); and all of the remainder of said share shall go to my grandson, William Schilling, son of Ernest Schilling; and in case of the death of said William Schilling, without issue, before the final distribution of this share of my estate, then all of such portions of said estate remaining at that time, and which would go to said William Schilling, if living, shall be assigned to Adolph J. Schilling, Gustav H. Schilling and Albert Schilling, share and share alike, or the survivors of them, or in case of the death of either of them to his issue.

9. I hereby authorize and empower the executors and trustees of my estate to sell the whole or any part of the same, whether real or personal, upon such terms and subject to such conditions and in such manner in all respects as they shall think fit and proper without the order of any court; and for the purpose aforesaid to execute all such deeds and instruments as may be necessary to pass title and to enter into all contracts necessary to the proper management of this estate; and they shall have the power to invest and re-invest all funds belonging to said estate as they shall deem proper in good income producing property or securities and I recommend to my trustees the greatest caution in making such sales and in making investments and in all such matters, I desire rather to have them regard the safety of the trust property than the amount of income to be derived from it.”

At the time of the death of Isidor Schilling, all of his sons were living, but in January, 1928, just about a year after the death of the testator, Ernest Schilling died, leaving him surviving a widow, Ella Schilling, a daughter, Alice Schilling, and a son, William Schilling. At the time of the death of Ernest Schilling, both his surviving children were minors, but at the time of the entry of the order construing the will in 1929 the daughter, Alice Schilling, was of age, and the son, William Schilling, was sixteen years old. Alice Schilling is now married and her present name is Alice Schilling Mould.

The widow, Ella Schilling, her daughter Alice Schilling Mould, and her minor son William Schilling, by his guardian ad litem, some time during the year 1929, petitioned the court for a construction of the will. Hearing on said petition was had during the month of December, 1928, but decision thereon was withheld until the 20th day of August, 1929, when the court entered its decision, made its findings of fact, conclusions of law, and order construing said will. The court found the facts substantially as hereinbefore stated. Its conclusions of law are as follows:

“1. That section 230.37 of the Statutes of Wisconsin applies to real estate and personal property alike, by virtue of the amendment to Section 230.14.

2. That upon the death of Ernest Schilling, his daughter, Alice Schilling, and his son, William Schilling, are the persons presumptively entitled to the next eventual estate.

3. That Alice Schilling, now being twenty-one years of age, is entitled to one-fourth of the accumulations heretofore accumulated and held in trust, and is further entitled to receive one-fourth of the accumulation over and above the $150.00 per month which the will directs to be paid to her mother, Ella Schilling, until such time as the mother shall die or remarry.

4. That the accumulations for William Schilling are valid and legal, and that he is not entitled to any payment.

5. That when William Schilling reaches his majority, he shall then be entitled to receive three-fourths of the income of the trust over and above the $150.00 paid to Ella Schilling and the one-fourth paid to Alice Schilling, and in addition, at such time, shall receive the accumulation of the three-fourths of the income of the trust, over and above the $150.00 per month paid to Ella Schilling, and over and above the one-fourth of the accumulation paid to Alice Schilling.

6. That when William reaches the age of twenty-one years, and his mother is still living and unmarried, then William shall receive the accumulations of said trust other than the $150.00 per month paid to his mother, Ella Schilling, and one-fourth of said income paid to Alice Schilling, and thereafter, until his mother shall die or remarry, he shall receive all the residue of the income from said share over and above the payments to Ella Schilling and Alice Schilling.

7. That the $150.00 per month provided by the will to be paid Ella Schilling so long as she shall live and remain the widow of Ernest Schilling, shall be so paid, and upon her death or remarriage if William shall not be twenty-one years of age, the income shall belong three-fourths to William and one-fourth to Alice, and if at the death or remarriage of Ella Schilling, the said William Schilling shall have arrived at the age of twenty-one years, then the principal or corpus of the share so held in trust shall be divided, $2,000.00 to Alice, and all the rest and residue to William.”

So much of the order construing said will as is necessary to understand the construction placed upon the will by the court below is as follows:

“It is ordered, adjudged and decreed that the portion of the will material to the construction asked for, Subdivision F of section 8 of the will, and which reads as follows: (Subdivision (f) quoted above) shall be construed as follows:

1. The trustees of the estate of Isidor Schilling, deceased, out of that one-fourth portion of said estate put in trust for the benefit of Ernest Schilling and his issue, shall pay monthly to Ella Schilling for and during the term of her natural life or until her remarriage, the sum of one hundred and fifty dollars ($150.00) to be used by her as she shall see fit, for the support of herself and children.

2. That Alice...