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

• Decision Date: 10 November 1936
• Citation: 223 Wis. 345,269 N.W. 550
• Parties: In re STANLEY'S WILL. STANLEY et al. v. STANLEY et al.
• Court: Wisconsin Supreme Court

223 Wis. 345

269 N.W. 550

In re STANLEY'S WILL.STANLEY et al.

v.STANLEY et al.

Supreme Court of Wisconsin.

Nov. 10, 1936.

Appeals from orders of the County Court of Chippewa County; Dayton E. Cook, Judge.

Reversed.

Upon a hearing pursuant to a petition dated December 23, 1935, and filed by William H. Stanley for the construction of the will of his father, Lemuel C. Stanley, and for directions to the administrator de bonis non in relation to making payments to the petitioner, the court entered three orders dated February 5, February 27, and March 16, 1936, respectively. Appeals from those orders were taken by Cornelius Stanley, Wilber Stanley, and Mildred Cave, the surviving children of William H. Stanley, and legatees under the will.Knowles & Doolittle, of River Falls, for appellants.

Frawley & Stolts and W. H. Frawley, Jr., all of Eau Claire, for respondents.

FRITZ, Justice.

The order dated March 16, 1936, the last of three orders appealed from, was evidently intended to supersede in substance and effect the first and the second of those orders. Consequently, it suffices to consider the substance and effect of that last order, and if it cannot be sustained, the other orders must likewise be reversed. In passing upon those orders, which were all made upon hearings pursuant to William H. Stanley's petition filed in December, 1935, for the construction of the will of his father, Lemuel C. Stanley, it suffices to note the following facts and propositions: Upon the death of Lemuel C. Stanley in 1909, his will was promptly admitted to probate in the county court for Chippewa county, and the estate is still in the process of administration. The will named a son, Frederick S. Stanley, as executor without bond, and he was immediately appointed. He served until removed by the court in April, 1917, when Elmer M. Bradford was appointed and qualified as administrator de bonis non (hereinafter called the administrator) with the will annexed.

[1] Frederick S. Stanley and the petitioner, William H. Stanley, were the only surviving children of the decedent, and in the will he provided for each of them. But on this appeal, only the following provisions, in relation to the petitioner, are involved, to wit:

“Third: I give, grant, devise and bequeath under the condition and subject thereto as herein named, unto my son William H. Stanley, the sum of Fifty Thousand Dollars ($50,000) income only shall be paid to him during his life time, and at his decease, the said sum of Fifty Thousand Dollars ($50,000) to be paid to his children Lemuel, Cornelius, Wilber and Mildred Stanley, and in case any of those children are not living at the time of my decease, the survivor to have the share of the one of those deceased.

“Ninth: And I further will and direct my executor shall invest the Fifty ThousandDollars ($50,000) bequeathed to my son William H. Stanley, in such manner and in such property as shall in his discretion seem best and the annual income only be paid to him during his life, and at his death, said sum of Fifty Thousand Dollars ($50,000) shall be paid to the children of said William H. Stanley, then living, and so bequeathed to them.

“Fifth: That in case I did not during my life time purchase and convey to my son, William H. Stanley, to have and to hold during his life time, and at his death to go to his children, a farm of the value of Five Thousand Dollars ($5,000) I will and direct that my Executor shall purchase a farm of the value of at least Five Thousand Dollars ($5,000), and cause the title thereof to be conveyed to my son, William H. Stanley, to have and hold during his life time, and at his death to his children then living, and so will, devise and bequeath.”

There is no ambiguity in those provisions, and there has never been any occasion or room for doubt as to the meaning and intention expressed therein by the testator. In and by the third and ninth paragraphs, he clearly and definitely created a $50,000 trust fund for the benefit of William H. Stanley and his children, by the segregation of assets of that value and the investment thereof by his executor in such manner and in such property as seemed best in the latter's discretion; and, in respect to the disposition of the income and the corpus of that fund, he expressly provided that the “income only shall be paid to him during his life time, and at his decease, the said sum of Fifty Thousand Dollars to be paid to his children” then living. Manifestly, under those provisions William H. Stanley was to receive all the annual income, but there was no authorization to use any of the corpus of that trust fund in order to give him an annual income therefrom at the rate of 6 or any other fixed percentage thereon.

[2] Likewise, unambiguous and without occasion for any departure from the definitely expressed meaning and intention of the testator was the command in the fifth paragraph that the “Executor shall purchase a farm of the value of at least Five Thousand Dollars ($5,000), and cause the title thereof to be conveyed on my son, William H. Stanley, to have and hold during his life time, and at his death to his children then living.” That provision did not create a trust. On the contrary, it devised a life estate to William H. Stanley in a farm which the executor was required to purchase, and it devised the remainder, after that life estate in that farm, to such of William H. Stanley's children as survived him. William H. Stanley was entitled only to the possession and use, during his life time, of the farm when purchased. No payment by the executor of interest on the authorized purchase money pending the investment thereof in a farm was authorized by the will.

However, although the inventory and appraisal filed at the outset of the administration showed the following assets:

+----------------------------------------------+
                ¦“Real Estate                    ¦$107,672.59  ¦
                +--------------------------------+-------------¦
                ¦Cash and Certificates of Deposit¦90,453.43    ¦
                +--------------------------------+-------------¦
                ¦Other personal property         ¦240,453.51   ¦
                +--------------------------------+-------------¦
                ¦Total estate                    ¦$438,579.53.”¦
                +----------------------------------------------+
                

and the indebtedness of the estate as shown by the judgment on claims was but $60, and an inventory filed in July, 1917, by the administrator, in April, 1917, showed assets totaling at $285,802.68, and (as the trial court rightly found, in making its order of March 16, 1936) ever since the testator's death, the property belonging to his estate, over and above the debts, liabilities, and expenses of administration, was such that the executor, as well as the administrator, could readily have converted portions of the estate into money and placed the $50,000 in a trust fund, and also invested the $5,000 in a farm in accordance with the will, and the property of the estate still remaining was at all the times since the testator's death, and still is reasonably valued at more than $100,000, neither the executor nor the administrator ever set up the trust fund provided for in the third and ninth paragraphs, or purchased the farm as prescribed in the fifth paragraph of the will. Instead of doing that and administering the estate in accordance with the provisions in those paragraphs, the executor, and subsequently the administrator, with the acquiescence of all the beneficiaries, as well as of the county court judges presiding, from time to time, proceeded to administer the estate in accordance with other schemes substituted by arrangements or agreements between the parties for the definite testamentary dispositions made in the will.

Thus, contrary to the testator's expressed intention, the county court ordered, in November, 1910, upon a petition of the executorand William H. Stanley, stating that they had entered into an arrangement to that effect, that the purchase of the farm be postponed, and that in lieu thereof the executor should, in the meantime, pay to William H. Stanley interest, at the rate of 6 per cent. per annum, on the authorized purchase price. After that, the executor, and subsequently the administrator, instead of purchasing a farm and also setting up the $50,000 trust fund, as provided in the will, and paying only the income thereof to William H. Stanley as authorized by the will, chose to and did pay to him $3,300 per year as interest at the rate of 6 per cent. per annum on $55,000; and, in April, 1917, and July 1925, on petitions for the removal of the executor and the administrator, respectively, the county court judges, in...