Scott v. West

• Decision Date: 13 October 1885
• Citation: 63 Wis. 529,25 N.W. 18
• Parties: SCOTT AND OTHERS, EX'RS, ETC., v. WEST, JR., IMPLEADED, ETC. SCOTT AND OTHERS, EX'RS, ETC., v. WEST, JR., AND OTHERS.
• Court: Wisconsin Supreme Court

63 Wis. 529

25 N.W. 18

SCOTT AND OTHERS, EX'RS, ETC.,

v.WEST, JR., IMPLEADED, ETC.

SCOTT AND OTHERS, EX'RS, ETC.,

v.WEST, JR., AND OTHERS.

Supreme Court of Wisconsin.

Filed October 13, 1885.

Appeal from county court, Milwaukee county. Opinion on motion for rehearing. See 24 N. W. Rep. 161.

*18Joshua Stark and Finches, Lynde & Miller, for respondents in first case.

Johnson & Wight, for appellants in first case.

Joshua Stark, for appellants in second case.

Johnson & Wight and Finches, Lynde & Miller, for respondents in second case.

CASSODAY, J.

In behalf of the plaintiffs a motion is made, ostensibly for a rehearing, but in reality to have the opinion filed made more definite and certain. The failure of expression and lack of precision was entirely the fault of the writer, and was such as to justify the motion. The only extenuating circumstance was an over-absorption in the weightier matters of the law involved therein.

1. By sanctioning the conclusions of law of the trial court, not inconsistent with any portion of the opinion filed, it is claimed that we sanctioned the conclusions that all expenses, disbursements, taxes, insurance, repairs, and the specific shares of the net income bequeathed, should “be paid and discharged exclusively with and out of the net income of the real estate of which the testator died seized, so far as such income will pay the same; and only in case the income of such real estate shall be insufficient therefor, and then only to the extent of such deficiency, ought any part of such expenses or disbursements be paid out of the income of the personal estate; * * * [that] the whole income of the personal estate, * * * or so much thereof as shall not be required to cover and pay such deficiency, * * * should * * * be loaned out or invested from time to time, * * * and kept so loaned or invested,” etc. Neither this court nor the writer hereof had any intention of so exonerating the personal estate or the income thereof, nor of so overburdening the real estate or the income thereof.

We do not think there is anything in the opinion indicating such intention. On the contrary the opinion frequently speaks of “the net income of the estate” as a whole, and nowhere indicates any different treatment to be observed with respect to the net income of personal estate than of the net income of real estate, except that the latter should be kept by itself by reason of possible illegal accumulations therefrom. Besides, it is stated in the opinion that real estate purchased with personal estate must from the time of such purchase be treated as real estate. It was stated on the argument, as we understand, that the accumulated income of the estate exceeded $20,000, and that there were substantially no debts. This being so, and the direction of the will by way of accumulations and bequests being confined to the net income of the estate, it seemed to us that such net income could only be ascertained by taking what was left of the gross income of the whole estate each year, after paying all debts, expenses, disbursements, taxes, insurance, repairs, and any other special burden upon the estate. The express directions in the will were by necessary implication, as it seemed to us, a direction to pay all debts, expenses, disbursements, taxes, insurance, repairs, and any other special burden upon the estate, out of the gross income of the whole estate, and then to treat the balance at the end of any year as the “ net income” for such year; and then out of such net income pay the specific legacies as directed, and the balance thereof accumulated as directed. Accordingly, the opinion *19states that “almost the entire corpus of the estate, and so much as might be left of the net income of his estate after satisfying the other provisions of the will, he tied up during the lives of his daughters, respectively, for his grandchildren, to be distributed to them as indicated on the death of his daughters.” Had there been a large amount of debts, or but little or no accumulations of income, so that it would have been necessary to appropriate a portion of the corpus of the estate to the payment of debts, expenses, disbursements, taxes, insurance, repairs, etc., then we would undoubtedly have directed such payments to be made from the personal estate in obedience to the well-established rule of exoneration of the real estate; for, in such an event, it would have been impracticable to carry into effect the implied direction to pay the same from the gross income.

2. The learned counsel, in support of the motion, seems to think that the opinion filed is open to the construction that each of the several grandchildren born or to be born after the testator's death, became, or will become immediately upon his birth, entitled in point of right to an equal share with all the other grandchildren in all prior accumulations of rents and profits accruing after the date of the testator's death, and down to the time of his birth, as well as in all accumulations accruing subsequent to his birth, until he shall arrive at the age of 21 years, when he may claim payment of his share in full. Such was not the intention of the writer. To so construe the opinion would render a considerable portion of it superfluous, and certain portions very inconsistent, if not in direct conflict with other portions. This misapprehension may be partly in consequence of the opinion dealing mainly with the principles of law which were supposed to control the construction of the will, rather than the details of administration under the will when construed. But the opinion in this respect should be more definite and certain, and a few words and expressions modified. The opinion filed in effect states the rule that immediately upon the death of the testator the grandchildren then in existence took a vested interest to the remainder in fee of the real estate, and an equitable right to the residue of the personal estate, but so as to open and let in any grandchildren subsequently coming into existence before the period of distribution. It also indicates a similar rule as to accumulations of net income of the estate. So it appears from the opinion filed that the grandchildren took such vested rights distributively as tenants in common, and not as joint tenants. It is moreover said that “the fractional share of each grandchild to such accumulation must, if the statute will permit, be treated by itself in considering whether the direction to accumulate is valid or void. The statute seems to contemplate the same thing.”

Undoubtedly, the general scheme of the will as to the accumulations of net income, if it could be carried out, would require the equitable right to them to be regarded as vested in the grandchildren living at the death of the testator, subject to open and let in grandchildren born thereafter during the lives of the daughters on equal terms with the others, and then on the death of both of the daughters be distributed as a part of the residue and remainder of the estate under the...