Stephenson v. Norris

• Decision Date: 08 May 1906
• Parties: STEPHENSON ET AL. v. NORRIS ET AL.
• Court: Wisconsin Supreme Court

128 Wis. 242

107 N.W. 343

STEPHENSON ET AL.

v.NORRIS ET AL.

Supreme Court of Wisconsin.

March 20, 1906.

On Rehearing, May 8, 1906.

Appeal from Circuit Court, Milwaukee County; Warren D. Tarrant, Judge.

Action by Isaac Stephenson and others, as executors and trustees under will of Daniel Wells, Jr., deceased, against Daniel Wells Norris and others. From a decree construing the will, certain defendants appeal. Affirmed.

Marshall, J., dissenting in part.

This is an action brought in the circuit court to construe the will of Daniel Wells, Jr., who died March 18, 1902. The action is brought by the executors and trustees named in the will against all the legatees, many of whom are minors. The estate bequeathed was very large, and the original will, executed February 20, 1897, was long and complicated, and was subsequently modified by three separate codicils. The complaint sets forth the death of the testator and the subsequent probate of the will and codicils in the county court of Milwaukee county, the names of all the heirs and legatees, the provisions of the will and codicils, also certain facts as to the indebtedness of certain beneficiaries to the estate of the testator, and alleges that they are advised that very serious doubts exist as to the meaning of certain provisions of the will, and that it is necessary for the protection of the legatees and devisees, as well as for the aid of trustees, that they should have the advice of the court in the premises, and they pray that the court construe the will and adjudge the meaning thereof in certain particulars which were put in the form of 22 questions in the prayer of the complaint. Guardians ad litem were thereafter duly appointed for the infant defendants, and these guardians made answer to the complaint submitting the rights of their wards to the court, and, after judgment construing the will and the codicils, three of said guardians appealed to this court.

By the first four items of the will the testator revoked former wills, directed payment of his debts, and made five specific bequests which are not here in question. By the fifth item he gave to his daughter Fanny Wells Norris certain specific personal property. By the sixth item he devised all the rest and remainder of his estate to Isaac Stephenson, Horace A. J. Upham, and Charles D. Nash, their survivors and successors, in trust, to hold the same during the term of the life of his daughter Fanny Wells Norris, and her son Daniel Wells Norris, and 19 years thereafter (except that the property named in the seventh item of the will was only to be held during the lifetime of the daughter), in trust for the following purposes and with the following powers: Said executors and trustees were directed to divide the entire estate into 81 shares not later than five years after the decease of the testator, said shares to be numbered from 1 to 81, inclusive; 79 of the shares being equal in amount, and the other two shares being equal to each other, but only one-half as large as one of the 79 shares. His trustees were also authorized to convert all his real estate into money, and his personal property into real estate, at their discretion, and to authorize one or more corporations as they might deem best, and convey to such corporation or corporations such property as they might deem best, and distribute the capital stock thereof among the shares aforesaid as they should deem best. By the seventh item of the will, as modified by the second codicil, the trustees were directed to hold 12 shares of said estate in trust during the life of his daughter, Fanny Wells Norris, for the benefit of his friends, Isaac Stephenson and Horace A. J. Upham, and any person or persons whom they or their survivor might designate in writing. By the eighth item of the will the trustees were directed to hold 24 1/2 shares in trust during the life of his daughter Fanny Wells Norris and her son Daniel Wells Norris, and 19 years thereafter, for the benefit of said daughter and her lawful descendants, and to pay quarterly the net annual income thereon to said daughter, and upon her death to her lawful descendants, giving to each of said descendants such portion thereof as such trustee shall deem best, and on the termination of the trust to pay whatever remains thereof to the then lawful descendants of his said daughter, giving to each such portion thereof as the said trustees shall deem best. Provisions is also made in said item for the disposition among other relatives of the deceased of the said 24 1/2 shares in case of the deaths of said Fanny Wells Norris and all her lawful descendants prior to the termination of the trust. By the ninth item of the will 24 1/2 shares of the trust estate is to be held in trust as directed for the benefit of Daniel Wells Norris, with specific directions as to the use of the income and the division of the principal at the termination of the trust. By the tenth item of the will 4 shares of the estate were directed to be held in trust for the benefit of Sarah H. Wells, widow of a deceased brother of the testator, and of her lawful descendants. By the eleventh item of the will 4 of said shares are directed to be held in trust for the benefit of the testator's sister Hannah A. Pratt, and her lawful descendants. By the twelfth item of the will 4 shares are directed to be held in trust for the benefit of the testator's sister Susan J. Brown, and her lawful descendants. By the thirteenth item 3 shares are directed to be held in trust for the benefit of the testator's niece Marcia E. Dickson, and her lawful descendants. By the fourteenth item 4 shares are directed to be held in trust for the benefit of the lawful descendants of the testator's deceased sister Sarah J. Parker. In all the foregoing items it is specifically provided, in case of payments to be made to the descendants of any beneficiary, that the income as well as the principal is to be divided among such descendants “in such portions to each as my said trustees shall deem best.”

The fifteenth item of the will, as amended by one of the codicils, reads as follows: “In case any person or persons otherwise entitled to any portion of my estate, under any provision of this will, shall, in the opinion of my said trustees or executors, or the survivors or survivor of them, or their respective successors in trust, not be either of good habits or of sufficient capacity to properly use or to take care of the portion of such property so coming to him or her, or shall not be likely, for any reason whatever, in the opinion of my said trustees or executors or the survivors or survivor of them or their respective successors in trust, to properly make use of the portion of such property so coming to him or her, then I empower my said trustees and executors, the survivors and survivor of them and the respective successors in trust, to withhold from every such person, whomsoever he or she may be, his or her portion of my estate and of the income and benefits thereof, as unworthy to receive the same, and to pay to every such person only so much of the portion of my estate otherwise coming to such person, as my said trustees or executors, the survivors or survivor of them or their respective successors in trust, having charge of that portion of my estate, shall deem advisable, and in case my said trustees or executors, or the survivors or survivor of them or their respective successors in trust, shall deem it best, instead of paying and transferring to any such person any portion of my estate, themselves to expend the same or any portion thereof for his or her benefit or support, then I hereby authorize my said trustees and executors, the survivors and survivor of them and their respective successors in trust, so to do, subject, always, to the provision that nothing herein contained shall, in any way, extend the duration of the several terms of trust beyond the time provided for in item sixth of this will. Whatever of my estate, including principal, income, or other beneficial use thereof, shall be withheld from any one, by reason of his, or her not being of such good habits or of sufficient capacity or for any other reason, as above provided, not worthy, in the opinion of said trustees or executors, the survivors or survivor of them or their respective successors in trust, to receive his or her portion of my estate, and shall not have been expended by my said trustees or executors, the survivors or survivor of them or their respective successors in trust, for the benefit and comfortable support of such person, shall be transferred to the person or persons who would have taken such property so withheld, in case the person from whom it shall be withheld, as above provided, had been dead at the time of such withholding. In case any person or persons from whom any portion of my estate shall have been withheld by my said trustees or executors, the survivors or survivor of them or their respective successors in trust, as aforesaid, shall have changed and shall have become worthy, in the opinion of my said trustees or executors, or the survivors or survivor of them or their respective successors in trust, to receive his or her portion of my estate, then I direct that the fact that my said trustees or executors, the survivors or survivor of them or their respective successors in trust, may have, at any time, withheld from such person a portion of my estate, shall not thereafter prevent such person from receiving his or her share of my estate, in any distribution either of principal or income that shall thereafter be made by my said trustees or executors, the survivors or survivor of them or their respective successors in trust; but the fact that any such person shall have become worthy to receive a portion of my estate, after having been deemed unworthy to receive the same as aforesaid, shall not entitle such person to receive any portion of my estate that...