Stark v. Conde

• Decision Date: 11 October 1898
• Citation: 100 Wis. 633,76 N.W. 600
• Parties: STARK ET AL. v. CONDE.
• Court: Wisconsin Supreme Court

100 Wis. 633

76 N.W. 600

STARK ET AL.

v.CONDE.

Supreme Court of Wisconsin.

Oct. 11, 1898.

Appeal from circuit court, Milwaukee county.

Action by Charles G. Stark, as executor of Edward J. Stark, deceased, and others, against Charles Edward Conde, for the construction of a will. From a judgment for defendant, plaintiffs appeal. Reversed.Joshua Stark and Fish, Cary, Upham & Black, for appellants.

J. W. Wegner and Timlin & Glicksman, for respondent.

CASSODAY, C. J.

It appears from the record: That the testator, Edward J. Stark, of Milwaukee, died February 4, 1897, leaving a will made and dated December 17, 1889, which was proved and admitted to probate March 2, 1897, and letters testamentary were thereupon issued to the plaintiff Charles G. Stark. That the fifth clause of the will is as follows, to wit: “I give and bequeath to my brother Charles G. Stark, of the city of Milwaukee, Wisconsin, as trustee, the sum of ten thousand ($10,000) dollars, in trust for the use and benefit of my nephew Charles Edward Conde, of the said city of Milwaukee, but upon the following limitations and conditions, to wit: Said sum shall be invested by said trustee as soon after the same shall come to his hands as may be, and shall be kept invested by him until my said nephew attains the age of thirty years; and if at that time said trustee deems my said nephew competent to care for and make prudent and proper use of the said sum of ten thousand ($10,000) dollars, and is of the opinion that it is safe and advisable to do so, he shall then pay over to my said nephew, Charles Edward Conde, said sum of ten thousand ($10,000) dollars, with interest thereon at the rate of five per cent. per annum from the time he first invests said sum until the day of payment thereof; but if, in consequence of the business habits or personal conduct of said Charles Edward Conde, or for any other reason, said trustee, in the exercise of his best judgment, shall be of the opinion that my said nephew, when he reaches the age of thirty years, will not thereafter prudently and properly manage and use the said principal sum, and that the same cannot be safely intrusted to him, then said Charles Edward Conde shall not be entitled to, and is not to receive, the aforesaid sum of ten thousand ($10,000) dollars and interest, or any part thereof; and in that event I give and bequeath said principal sum, with the aforesaid interest thereon, to the then surviving children of my brother Joshua Stark, and of my sister Sarah Jane Smith, share and share alike, the said principal sum and interest to be then immediately paid to such surviving children of my said brother and sister last named.” That the executor proceeded to administer the estate in accordance with the will. That October 2, 1897, he filed with the county court his petition giving an account of his administration, and praying, among other things, for a construction of the fifth paragraph of the will quoted. That, upon due notice given and hearing had, the county court, May 4, 1898, adjudged and decreed that the executor of the will should pay the sum of $10,000, with interest, if any, mentioned in the fifth item or paragraph of the will, to Frank G. Stark, Kate A. Inbusch, Alice Smith, Mary Spencer, Carrie Smith, and William Stark Smith, children of Joshua Stark and Sarah Jane Smith, respectively. From that judgment Charles Edward Conde appealed to the circuit court. That upon the hearing of such appeal it was found by the circuit court, as matters of fact, in effect, that Edward J. Stark died testate February 4, 1897; that his last will and testament was duly admitted to probate March 2, 1897; that Charles G. Stark, the executor named therein, was duly appointed and qualified as such executor, and has since been acting as such; that such executor has in his hands, ready for distribution, money sufficient to pay, satisfy, and discharge all the legacies in the will provided for; that Edward J. Stark was a bachelor, and at the time of his death left him surviving, as his only heirs at law, three brothers and two sisters, and the said Charles Edward Conde, the latter being the only child of a deceased sister of the testator; that the names of the brothers of the testator surviving him are Joshua Stark, Charles G. Stark, and Theodore F. Stark, and the names of his sisters are Maria H. Stark and Sarah Jane Smith; that the will contained, among other provisions relating to other legacies or bequests, the fifth paragraph, quoted; that Charles Edward Conde was born March 3, 1868; that his mother was a sister of the testator, and died in 1877; that Charles Edward Conde arrived at 30 years of age March 3, 1896; that the testator did not die until about 11 months afterwards; that the children of Joshua Stark surviving at the date of the testator's death were Frank G. Stark and Kate A. Inbusch, and that the children of Sarah Jane Smith surviving at the same date were Alice Smith, Mary Spencer, Carrie Smith, and William Stark Smith, all of whom are still living, and of the age of 21 years and upward. As conclusions of law the court found, in effect, that, under the terms of the will quoted, the legacy of $10,000 vested in interest in Charles Edward Conde at the date of the testator's death; that the limitations and conditions concerning the same, contained in the will, are in the nature of conditions subsequent, and impossible of performance as specified in the will; that, the testator having lived until after Charles Edward Conde reached the age of 30 years, the executor had no right or power to determine that he would not prudently or properly manage and use the legacy, or that the same could not be safely intrusted to him, or that he could not have it for any other reason; that the time within which such determination should have been made had expired prior to the death of the testator; that, the legacy having vested in interest in Charles Edward Conde, nothing could, under the will and the attending circumstances, occur subsequently to devest it; that the proper construction of the will required the executor to pay over to Charles Edward Conde the legacy of $10,000, upon demand by him; that Charles Edward Conde is entitled to his costs and disbursements, to be paid out of the estate. From the judgment entered thereon accordingly, the plaintiffs bring this appeal.

Of course, the will did not become effectual until the testator died, and the same had been admitted to probate. Scott v. West, 63 Wis. 555, 24 N. W. 161, and 25 N. W. 18. The bequest is, in effect, to the executor, as trustee, in trust for the use and benefit of Conde, upon the conditions and limitations that he (the trustee) would keep the sum mentioned invested until Conde should attain the age of 30 years; and that “if at that time said trustee” should deem Conde “competent to care for and make prudent and proper use of the said sum,” and should be of the opinion that it would be safe and advisable to do so, “then” he was thereby required to pay it over to Conde; but if, in consequence of Conde's business habits or personal conduct, or for any other reason, said trustee, in the exercise of his best judgment, should at that time be of the opinion that Conde would not thereafter prudently and properly manage and use such bequest, and that the same could not safely be intrusted to him, then he was not to give it to him, but the same was thereby bequeathed to the other persons therein named. It appears that December 1, 1895, 14 months prior to the testator's death, Conde was...