Van Steenwyck v. Washburn

• Decision Date: 20 November 1883
• Citation: 17 N.W. 289,59 Wis. 483
• Parties: VAN STEENWYCK AND OTHERS, EX'RS, ETC., v. WASHBURN AND OTHERS.
• Court: Wisconsin Supreme Court

59 Wis. 483

17 N.W. 289

VAN STEENWYCK AND OTHERS, EX'RS, ETC.,

v.WASHBURN AND OTHERS.

Supreme Court of Wisconsin.

Filed November 20, 1883.

Appeal from circuit court, La Crosse county.

LYON, J., dissents.Finches, Lynde & Miller and Wing & Prentiss, for appellants, Gysbert Van Steenwyck and others, executors, etc.

Cameron, Losey & Bunn and John I. Cole, for respondents, Jeanette Washburn and others.

COLE, C. J.

This is a bill filed by the executors praying the court to construe the will of the late Gov. C. C. Washburn, and to direct them as to the manner of executing its trusts. All persons interested in the estate are made parties. The first question, as to which the instruction of the court is asked, is whether Mrs. Washburn, the widow of the testator, being insane, must take under the provisions of the will or against the will. The statute on this subject enacts that if any lands be devised to a woman, or other provision be made for her in the will of her husband, she shall make her election whether she will take the lands so devised, or the provision so made, or whether she will claim the share of his estate allowed her by law. She is not entitled to both, unless it plainly appears by the will to have been so intended by the testator. Section 2171, Rev. St. When the widow shall be entitled to an election, she shall be deemed to have elected to take such devise or other provision, unless, within one year from the death of her husband, she file in the proper probate court a notice in writing that she elects to take the provision made for her by law instead of such devise or other provision. Section 2172. As was observed in Hardy v. Scales, 54 Wis. 452, [S. C. 11 N. W. REP. 590,] this statute changes the common-law rule that a provision for the widow, in the will, was presumed to be a matter of bounty, and not intended to exclude dower, unless it was so declared in the will, or resulted as a necessary implication from its terms.

The second clause of the will under consideration reads as follows: “I direct my executors to bear constantly in mind the wants of my wife, and to set aside, use, and expend whatever moneys may be necessary, consistently with her condition, to provide for her comfort and physical health; and I place no limit upon the sums which they may spend for the purposes indicated.” Now, can this be said to be a “devise” or “other provision” made for the widow within the meaning of section 2171 above referred to? We are clearly of the opinion that an affirmative answer must be given this question.

All the counsel agree that the intention of the testator, as collected from the whole will, must control in the interpretation of any particular clause. Now, observing this cardinal rule of construction, were there any doubt as to the meaning or intent of the second clause,--and we do not really perceive how there can be,--such doubt would be removed by an examination of the other clauses. But regarding this clause alone, what conclusion can be drawn from the language used? It seems to us we must say and hold that the testator therein and thereby intended to make, and did make, provision for his wife which was to be in lieu of dower and one-third of the personal estate. The provision is to continue for her natural life. It is ample and adequate to meet her every want, to secure for her every comfort and every relief which money may provide, and which her physical health or mental infirmity may require under any possible change in her condition. The executors are imperatively directed to bear constantly in mind the wants of his wife; to set aside, use, and expend whatever money may be necessary, consistently with her condition, to provide for her comfort and physical health, without limit as to the sums they may spend for these purposes. This is strong and unequivocal language, and excludes all doubt as to the meaning or intent of the testator. We are confident we have not misapprehended it in the remarks which we have made upon this clause.

This conclusion is greatly strengthened by other clauses of the will, in which the testator carefully directs how his estate is to be managed and disposed of by his executors or the Fidelity Company, his ultimate trustee. Express provision is made for renting the flouring mills at Minneapolis by the executors; for putting them and the pine lands on Black river into a corporation; or in the event that these properties were not put into a corporation, then for their sale and conveyance; for cutting the timber on the pine lands, manufacturing it into lumber, and selling the same; and for the final distribution of the residue of the estate after all legacies and bequests were paid. These provisions are utterly inconsistent with the idea that the widow was to have dower in the estate, and demonstrate that it was the intention of the testator to make some other provision for her which should be in lieu and satisfaction of all legal rights. And so far from “it plainly appearing by the will” that she should have dower in addition to that provision, the contrary intention is clearly manifest. Counsel referred to cases which hold that after a provision is made for the widow, where lands are devised to trustees upon trusts for any purpose, with power or direction given the trustees to occupy, manage, or lease the same, or even to cut timber on any part of the lands, this mode of disposition is considered inconsistent with a claim of dower and makes an election necessary. Birmingham v. Kirwin, 2 Schoales & L. 444; Miall v. Brain, 4 Madd. 119; Butcher v. Kemp, 5 Madd. 61; Goodfellow v. Goodfellow, 18 Beav. 365, are instructive upon this point. We do not deem it necessary to go over these cases, inasmuch as the intention to exclude dower is so perfectly plain and clear on the face of the will.

But the learned counsel who combats this view says the direction to the executors to provide for the comfort and physical health of his wife, created no charge upon the testator's estate; that it was merely a personal direction to them, intended to be in force only during the settlement of the estate, which the testator contemplated would be closed at the end of five years. Some of the duties imposed upon the executors by the will, it was doubtless expected they would fully discharge or perform in five years. But that was not the case in respect to all the duties intrusted to them by the will. The direction requiring them to constantly bear in mind the wants of his insane wife, and so set aside, use, and expend whatever money might be necessary to provide for her comfort and support, created a personal trust which was to continue while she lived. This is apparent from the will. The executors cannot discharge themselves of this important duty--as they can of some others--by transfering that trust to the Fidelity Insurance, Trust & Safe Deposit Company of Philadelphia, even if that institution would agree to accept and perform it; for it was a matter of personal trust and confidence reposed in them as trustees by the testator. The will not only provides all the pecuniary means necessary for a full performance of the trust, but it expressly requires the executors to expend whatever may be essential to promote her comfort or meet her wants. To maintain and support such a trust, to enable the executor to perform the duties which it devolves upon them, they have the control of the entire estate, and are required to set aside and retain in their hands a sufficient sum to meet all the possible wants of Mrs. Washburn, of every kind, while she lives. For, as we have said, this is a personal trust confided to them in addition to the ordinary powers and duties of executors. It cannot be doubted that the testator regarded it as the most delicate and important duty intrusted to them under the will; therefore he selected for its performance intimate friends and relatives, persons who would most likely take a lively interest in, and watch with the greatest concern over, the welfare and comfort of his unfortunate wife. It seems hardly necessary to add that the second clause creates a personal trust within the strict sense of the term. See Saunderson v. Stearns, 6 Mass. 37;Dorr v. Wainwright, 13 Pick. 328;Dole v. Johnson, 3 Allen, 364:Carson v. Carson, 6 Allen, 397;Warner v. Bates, 98 Mass. 274;Sawyer's Appeal, 16 N. H. 459; 2 Story, Eq. Jur. §§ 1058 et seq.; 1 Perry, Trusts, § 262; Batchelder v. Batchelder, 20 Wis. 453;Burt v. Herron, 66 Pa. St. 400; In re Sanderson's Trust, 3 Kay & J. 497; Thorp v. Owen, 2 Hare, 608; Erickson v. Willard, 1 N. H. 227;Foley v. Parrey, 1 Cooper, Sel. Cas. 219; S. C. 8 Eng. Con. Ch. R. 444; Stewart v. Chambers, 2 Sandf. Ch. 382.

But the learned counsel insists that the provision in the second clause cannot come within the statute, because the amount to be expended by the executors for the support of Mrs. Washburn rests solely in their discretion, and that a court will not review such discretion if exercised in good faith. So he says, whether the amount to be spent for the benefit of the widow is $1,000 or $5,000 a year, is entirely within the discretion of the executors, and that no person can be put to an election until fully advised of the extent and value of the two rights or things he must choose between. In answer to this position we say there can be no doubt, if the executors neglect or refuse to expend whatever money may be necessary to execute the trust, that a court of equity will compel them to do so. There is surely no such uncertainty as to the requisite amount as to be incapable of legal ascertainment. Id certum est quod certum reddi potest. In one sense there is no discretion in the executors or trustees upon the subject. They must expend whatever is necessary for the purposes indicated. The direction is mandatory in the will, leaving no discretion in the executors in that regard. An absolute duty is imposed to expend whatever is necessary,...