Webster v. Morris

• Decision Date: 27 May 1886
• Citation: 66 Wis. 366,28 N.W. 353
• Parties: WEBSTER AND OTHERS EX'RS, ETC., v. MORRIS AND ANOTHER, IMPLEADED, ETC. WEBSTER AND OTHERS EX'RS, ETC., v. MORRIS AND OTHERS.
• Court: Wisconsin Supreme Court

66 Wis. 366

28 N.W. 353

WEBSTER AND OTHERS EX'RS, ETC.,

v.MORRIS AND ANOTHER, IMPLEADED, ETC.

WEBSTER AND OTHERS EX'RS, ETC.,

v.MORRIS AND OTHERS.

Supreme Court of Wisconsin.

May 27, 1886.

Appeal from circuit court, Winnebago county.

This action was commenced in the circuit court, for the construction of the last will and testament of Hiram W. Webster, deceased, and for the advice and directions of the court upon certain questions submitted, and for such other or further instructions thereon respecting the execution of the trusts thereby imposed as may seem proper. The will was duly executed, and is in the words and figures following:

“I, Hiram W. Webster, of the village of Omro, Winnebago county, state of Wisconsin, being of sound mind and memory, and mindful of the uncertainties of human life, so make, publish, and declare this my last will and testament, hereby revoking all former wills, bequests, and devises by me made.

First. It is my will that all my just debts, funeral expenses, and all other charges be paid out of my estate.

Second. I give, devise, and bequeath to my beloved wife, Louisa M., the sum of ten thousand dollars, to be paid out of my estate.

Third. I further give, devise, and bequeath to my beloved wife, Louisa M., my homestead of about six acres of land, known as ‘Outlot No. seventy-five, (75,)’ south of Fox river, in the village of Omro, Winnebago county, state of Wisconsin, together with all the appurtenances thereto belonging.

Fourth. I give, devise, and bequeath to my beloved wife, Louisa M., all the household furniture, beds, bedding, books, works of art, and other chattels, jewels, trinkets, personal ornaments, worn or used by me or her, fuel, housekeeping provisions, and other consumable stores which shall be in or about my dwelling-house in said village of Omro at my decease, except money, securities for money, evidences of debts, and of title and accounts; and I also give, devise and bequeath to my beloved wife, Louisa M., my carriage horse, carriage, sleigh, harnesses, robes, bells, and cow, and the hay and grain on hand for feeding said horse and cow, which, with what I have heretofore given to her in this, my will, I mean to be, and that she, my beloved wife, Louisa M., accept the same, in full of her right of dower or third in my estate, and I give to her as above upon the express condition that she, my beloved wife, Louisa M., shall give to my executors, when demanded, a release of all demands and claims of dower or thirds and otherwise of and against my estate, save what I have herein given her, except certain promissory notes which my beloved wife, Louisa M., now holds, or which she may hold against me at my decease, which I will, wish, and direct shall be considered and treated a proper debt and claim in her favor against my estate, and the amount of said promissory notes paid her out of my estate.

Fifth. I give, devise, and bequeath out of my estate not hereinbefore disposed of, to Hiram W. Morris, my grandson, and son of Delphina and M. D. Morris, the sum of ten thousand dollars; said sum to be invested and put to use, and the interest arising therefrom, or so much as said child's guardian and my executors, hereinafter mentioned, may consider proper and necessary, be used for the support and education of said child, and at his majority the unexpended interest from said principal sum be paid him, and the interest on said sum annually thereafter, until he arrives at the age of thirty years, at which time I will and direct that my executors pay to said Hiram Webster one-half of said ten thousand dollars, and one thousand dollars each year thereafter, together with all interest earned, until the balance of said ten thousand dollars hereby willed to him has been paid: provided, however, that said Hiram Webster has in the mean time learned some useful trade, business, or profession, and is of good moral character,--my executors to determine whether said child has fully complied with said proviso,--before any payments from the principal sum are made to him.

Sixth. I give, devise, and bequeath to Edward Morris, my grandson, and son of Delphina and M. D. Morris, the sum of ten thousand dollars; said sum to be invested and put to use, and the interest arising therefrom, or so much as said child's guardian and my executors, hereinafter mentioned, may consider proper and necessary, be used for the support and education of said child, and at his majority the unexpended interest from said principal sum be paid him, and the interest on said sum annually thereafter, until he arrives at the age of thirty years, at which time I will and direct that my executors pay to said Edward Morris one-half of said ten thousand dollars, and one thousand dollars each year thereafter, together with all interest earned, until the balance of said ten thousand dollars hereby willed to him has been paid: provided, however, that said Edward Morris has in the mean time learned some useful trade, business, or profession, and is of good moral character,--my executors to determine whether said child has fully complied with said proviso,--before any payments from the principal sum are made to him.

Seventh. I will and direct that in case of the death of either child without leaving an heir, and before the said legacies are paid to them, or either of them, that the surviving one shall be considered the first heir, and have the share of the deceased one, under the same restrictions and upon the same conditions provided for said deceased one's share; but, in case of the death of both without leaving an heir, all remaining payments and legacies to revert back to my estate, and to be expended by my executors for charitable purposes, or given to any of my heirs who are in need, or not in very comfortable circumstances, as to my executors seems fit and proper.

Eighth. I give, devise, and bequeath to my son-in-law, M. D. Morris, one certain promissory note for one thousand dollars, given by him to use, dated November 29, 1878.

Ninth. I give, devise, and bequeath to David Hudson, of Hampton, Washington county, state of New York, the annual interest of two thousand dollars during his life, said annuity to be paid him annually; and it is my will and I direct my executors to put and keep said sum of two thousand dollars at interest at the best rate obtainable, reference being had to good security; and at his death I give, devise, and bequeath said sum of two thousand dollars to Amanda Rice, wife of John Rice, of the village of Omro, Winnebago county, state of Wisconsin.

Tenth. I give, devise, and bequeath to Lyman Coleman, of Castile, Wyoming county, state of New York, Henry Sterns, and Betsy Marshall, wife of Edwin Marshall, of Omro, Winnebago county, state of Wisconsin, each the sum of five hundred dollars.

Eleventh. I give, devise, and bequeath to my three sisters, Anna Martin, of Pike, Emily L. Sterns, of Warsaw, Isabel Broughton, of Covington, all of Wyoming county, state of New York, each one thousand dollars; and the surviving children of Lucy Hotchkiss, wife of Cornelius Hotchkiss, of Erie county, state of Pennsylvania, one thousand dollars, to be equally divided between them.

Twelfth. I give, devise, and bequeath to the Omro and Algoma Union Cemetery Association, of Omro, Winnebago county, state of Wisconsin, the sum of one thousand dollars; which said sum I will and direct to be paid over to the proper officers of said association, for the purpose of assisting in building a chapel on or near the said association cemetery grounds, to be built of brick or stone, with a seating capacity to accomodate two hundred persons; but, in case said association will not build said chapel, then I direct and will the said sum of one thousand dollars to said association upon the express condition that said association put said one thousand dollars to use, and the annual interest arising therefrom be used by said association in improving their cemetery grounds.

Thirteenth. I give, devise, and bequeath to the First Presbyterian Church, of the village of Omro, Winnebago county, state of Wisconsin, the sum of ten thousand dollars, upon the following conditions, to-wit: That said sum be kept as a perpetual fund for the use of said society, and the interest arising therefrom; one-half to be used by said society in defraying the annual expenses, and the balance distributed and used for the relief of the resident poor.

Fourteenth. It is my will, and I hereby instruct my executors, that one-third interest in the partnership business of the firm of Webster & Co., of the village of Omro, remain in said business according to the terms and conditions of a certain contract between me, Henry Scott, and E. C. Jones.

Fifteenth. It is my will, and I direct, that in case my estate exceeds the legacies mentioned in this, my will, that the surplus or remainder of my estate be appropriated and used by my executors in aid or encouragement of charitable purposes; and if in their judgment there should be a sufficient amount of said surplus, I would recommend that the same be used to establish a school in Omro, or some place in Winnebago county, Wisconsin, for the education of young persons in the domestic and useful arts; but in case there is not enough of my estate to meet the above legacies, that the deficit may be borne pro rata between the legatees, except my beloved Louisa M.

Sixteenth. I will and direct that all legacies to my beloved wife, Louisa M., be paid in full.

Seventeenth. All legacies and bequests mentioned in this, my will, I will and direct be paid out of my estate within five years from my death, without paying any interest on said legacies.

Eighteenth. I hereby nominate and appoint my beloved wife, Louisa M., Edward Sargent, and E. R. Hicks, of Winnebago county, Wisconsin, the executors of this, my last will and testament; and hereby authorize and empower them to compound, compromise, and settle any claim or...