Scott v. West

• Decision Date: 02 July 1885
• Citation: 24 N.W. 161,63 Wis. 529
• Parties: SCOTT AND ANOTHER, EX'RS, ETC., v. WEST, JR., IMPLEADED, ETC. (TWO CASES.)
• Court: Wisconsin Supreme Court

63 Wis. 529

24 N.W. 161

SCOTT AND ANOTHER, EX'RS, ETC.,

v.WEST, JR., IMPLEADED, ETC. (TWO CASES.)

Supreme Court of Wisconsin.

Filed July 2, 1885.

Appeal from county court, Milwaukee county.

March 17, 1883, Napoleon B. Caswell died at his residence in Milwaukee, leaving a will, executed July 16, 1880, which was proved and admitted to probate, July 5, 1883, and which, omitting immaterial parts, was as follows, to-wit:

“ First. I give and bequeath to my daughters Mary and Kate three twenty-fourth parts each of the net income of my estate during their natural lives; and in case either or both of my said daughters shall marry and have issue, 1 give and bequeath to them, respectively, for the use and benefit of each of their children during the natural lives of such children, one twenty-fourth part of the net income of my estate, so long as either of my said daughters shall live.

Second. I give and bequeath to my grandson, Henry T. West, Jr., the child of my son-in-law, Henry T. West, and my daughter Helen S., now deceased, from and after the time when he shall attain the age of twenty-five years, one twenty-fourth part of the net income of my estate during his natural life, so long as either of my said daughters shall live.

Third. I give, devise, and bequeath to my said daughters, Mary and Kate, and to the survivors of them, during their natural lives, the dwelling-house, which I now occupy, and all that piece of land upon which it stands, (constituting my homestead described,) free of taxes, expenses of repairs, and insurance, and to them jointly all my household goods, furniture, books, pictures, plate, and ornaments.

Fourth. After the death of my said daughters, Mary and Kate, I give, devise, and bequeath all the residue and remainder of my property, real and personal, to my surviving grandchildren and to the legal issue of any deceased grandchild or grandchildren, by way of representation of such deceased grandchild or grandchildren, and to their heirs and assigns, forever, in equal parts.

Fifth. I order and direct that my executors pay all my just debts, including mortgages on my real estate, if any, with as little delay as may be after my decease, and that during the lives of my said daughters they pay the taxes on the homestead property as aforesaid, and on the household goods, furniture, pictures, books, plate, and ornaments bequeathed to my said daughters, and keep the same insured and in good repair, without expense to my daughters, or either of them; and in the case of the destruction of the dwelling-house on said homestead property by fire, I direct my executors to rebuild the same without expense to my daughters, whether the insurance moneys be sufficient for that purpose or not.

Sixth. It is my wish that my estate should be prudently managed in every respect; that the buildings and other improvements on real estate should be kept in good condition as to repairs; and if, in the opinion of my executors, the interest of all parties concerned would be promoted by purchasing other real estate, or making improvements on my real estate which may be improved, I authorize the use for that purpose of any moneys that may come into their hands not otherwise disposed of by this will.

Seventh. My daughters Mary and Kate are required to pay quarterly, from the net income they shall derive from my estate, to my sister, Eveline Caswell, a sum sufficient for her comfortable support, as long as she shall live.

Eighth. I appoint my said daughters, Mary and Kate, the executors of this my last will, and request that they be permitted to act as such without giving security.

Lastly. I hereby revoke all former wills by me made.

In witness whereof, I have hereunto set my hand and seal this sixteenth day of July, A. D. 1880.

NAPOLEON B. CASWELL.” [Seal.]

In May, 1884, the plaintiffs, as executors, commenced this action in the county court against their respective children, and the child of a deceased sister, all named in the will, for a construction thereof. The defendants are all infants and grandchildren of the testator. Henry T. West, Jr., answers by his guardian ad litem; William W. Wright and the other defendants, by their guardian ad litem, William P. Lynde. On the trial it was either admitted by the parties or found by the court that the deceased had been divorced from his wife just prior to October 19, 1870; that the testator and his said wife had, during their marriage, three daughters, all living at the time of such divorce, to-wit, Helen S., Mary E., and Kate F.; that, on the day and year last named, the testator conveyed to his divorced wife certain lands and property described, upon certain express trusts, for the benefit of their said daughters, to be conveyed by her to them, or the survivors or survivor of them, in equal shares, or to the lineal heirs of such daughters, respectively, on January 28, 1884, when the youngest of said daughters should attain the age of 21 years; that Helen S. married Henry T. West, July 11, 1872, and, as the fruit of that marriage, had the West grandson named as defendant, born April 15, 1873, and May 3, 1873, Helen S. died; that Mary E., when 23 years of age, married Frederick M. Scott, October 31, 1877, and as the fruit of that marriage had the three Scott children named as defendants, born, respectively, September 4, 1878, March 25, 1880, and November 9, 1881; that Kate F. married Oliver C. Fuller, May 25, 1881, and as the fruit of that marriage had the Fuller grandchild named as defendant, born July 23, 1883; that Kate F. became 21 years of age, January 28, 1884; that on that day the divorced grandmother conveyed to the defendant Henry T. West, Jr., as the only child and heir at law of Helen S., and in execution of the deed of trust to her, the undivided one-sixth part of the real estate so conveyed to her in trust by the testator, valued at $15,000, and which had brought a net income of from $500 to $600 per annum; that the testator's relations to Henry T. West, Jr., at and prior to the date of the will, were friendly and affectionate, and he had prior to that time expressed the intention of providing liberally for him; that the will had been prepared by the testator himself, and in so doing he had copied in part from a former will, and this is why the testator speaks of his two surviving daughters as unmarried, when in fact Mary E. had been married nearly three years, and had two children; that the dwelling-house and homestead was worth $6,500, and could be rebuilt for that then, or at any time within 15 years, at a cost not exceeding $8,000; that it needed repairs to the extent of $600, and would require for repairs, on an average, an expenditure of $150, and an annual expenditure for insurance of $25; that the annual expenditure for taxes and insurance of the homestead property, real and personal, bequeathed to Mary E. and Kate F. had for several years been less than $300 a year, and that the whole value thereof did not exceed $10,000; that at the time of the testator's death he was seized and possessed of real estate worth $177,000, and personal property valued at $151,707.05, exclusive of household furniture, plate, etc., valued at $859.85, given to the daughters by the third paragraph of the will; that the net income of the estate, at and since the death of the testator, had been about $20,000 per annum; that the total amount and value of the entire estate at the time of the hearing was about $350,000; that the testator was nearly 69 years old at the time of his death, but had seen neither of his two Scott grandchildren; that his daughters Mrs. Scott and Mrs. Fuller were, at the time of the hearing, in good physical condition and health, and members of a long-lived family.

As conclusions of law the court found the true intent and meaning of the will according to its terms, and construed the same. From the judgment entered thereon, the defendant Henry T. West, Jr., appeals to this court, and plaintiffs, as executors, also appeal to this court.

Joshua Stark and Finches, Lynde & Miller, for Scott and another.

Johnson & Wight, for West and others.

CASSODAY, J.

The testator had sufficient sagacity to accumulate a large fortune. He lacked the requisite sagacity to secure competent legal aid in drawing a will which should embody an intelligent expression of his purposes, and at the same time be free from legal complexity. The result of such failure is this suit to ascertain his intentions as expressed in his will, and to determine whether any of its provisions were in violation of any rule of law. Possibly other suits may arise. Whether such failure was induced by economic considerations, or an innate conceit of the testator's capacity to draw his own will, is immaterial, since in either event the experiment is equally expensive and troublesome, and may result in defeating some of the purposes cherished. It would be difficult to find a will with language unobscured and containing so few provisions, and yet involving so many intricate legal propositions. This does not result from any bungling or awkward use of the words employed, nor the usual confusion produced by a superfluity of language, nor repeated inconsistent and conflicting statements, but from a poverty of expression as to things touched upon, obviously growing out of the absence of the requisite knowledge of the law applicable to the dispositions intended; and hence a failure to mention some things which, seemingly, must have been in contemplation at the time.

In construing the different provisions of such a will, it seems to be especially necessary to first fully comprehend the scheme of the whole will, and the ultimate purpose or object sought to be secured in the making of it. To discover such purpose and object, upon the principles of law applicable, is the business of construction. Putting ourselves as far as possible in the place of the testator at the time of making the will, and reading...