Wehr's Trust, In re

• Decision Date: 03 October 1967
• Citation: 36 Wis.2d 154,152 N.W.2d 868
• Parties: In re TRUST Created by the Last Will and Testament of William E. WEHR, Decd. CONTINENTAL ILL. NATL. BANK & TRUST CO. OF CHICAGO, Exr. of the Estate of C. Frederic Wehr, Decd., Appellant, v. Joseph SCHOENDORF, Spec. Admr. of the Estate of William E. Wehr, Decd. et al., Respondents.
• Court: Wisconsin Supreme Court

Page 868

152 N.W.2d 868

36 Wis.2d 154

In re TRUST Created by the Last Will and Testament of William

E. WEHR, Decd. CONTINENTAL ILL. NATL. BANK & TRUST CO. OF

CHICAGO, Exr. of the Estate of C. Frederic Wehr, Decd., Appellant, v. Joseph SCHOENDORF, Spec. Admr. of the Estate of William E.

Wehr, Decd. et al., Respondents.

Supreme Court of Wisconsin.

Oct. 3, 1967.

Rehearing Denied Dec. 5, 1967.

Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, for appellant.

Bernard V. Brady, John T. Harrington, and Samuel J. Recht, Milwaukee, Brady, Tyrrell, Cotter & Cutler, Milwaukee, of counsel for 1st Wis. Trust Co., Spec. Admr. Estate of Edward R. Wehr, deceased.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Reuben W. Peterson, Jr., George N. Kotsonis, Milwaukee, of counsel, for Virginia Smith, Frederick Bodden, Rila Bodden, Marion Hayes, Fiske Parnskopf & Jeanette Rotta.

Shea, Hoyt & Greene, Milwaukee, for Clara W. D. Wall.

Michael, Best & Friedrich and F. William Haberman, Milwaukee, of counsel for Thompson, Spec. Admr. of the Estate of Robert M. Wehr.

Peter P. Woboril, Jr., Milwaukee, for Geo. W. Hubmann.

Harrold J. McComas, Edwin F. Walmer, Foley, Sammond & Lardner, Milwaukee, for Carl H. Wehr, Jr., Alfred H. Wehr, Richard H. Wehr and Mary Wehr Bertram.

Quarles, Herriott, Clemons, Teschner & Noelke, Milwaukee, for M & I Bank, Spec. Admr. Estate of Henry W. Wehr, Decd.

CURRIE, Chief Justice.

The trust estate distributable under subparagraph VII(3)(b) of the will of William E. Wehr, deceased, will be referred to as the 'Gebhardt remainder.'

With the exception of respondent Hubmann, it is the position of all other parties to this appeal that there is a failure of the Gebhardt remainder because of the decease of Clara Gebhardt and her daughters prior to the death of the last life beneficiary, C. Frederic Wehr. Hubmann contends that there was no failure of the trust on two alternative grounds: (1) the remainders of the two Gebhardt daughters who survived the testator were indefeasibly vested; (2) Hubmann qualifies as a 'descendant' of Clara Gebhardt, his father having been Clara Gebhardt's brother.

The claims advanced by the parties on the basis that the Gebhardt remainder has failed fall in the following categories:

(a) The four children of Carl Wehr take as distributees of the other residuary remainder. This was the holding of the county court.

(b) The remainder is distributable as intestate property to the estates of the persons who constituted testator's heirs at the time of his death on August 24, 1944.

(c) The remainder is distributable to those persons, or their estates, who were the heirs of testator as of the date of the death of C. Frederic Wehr, the last life beneficiary, on September 28, 1965.

The claim that the Gebhardt remainder passes to the distributees of the other residuary remainder is based on the intent of testator. In partial support of this claim, respondents Carl Wehr, Jr., et al., note that at the time testator executed his will (March 10, 1937), Wisconsin case law held that lapsed residuary gifts should pass to the remaining residuary distributees. They argue that, in failing to provide for a gift over of the trust, testator intended that it should pass pursuant to such law.

The claim that the remainder is distributable to the estates of those persons who constituted testator's heirs at the time of his death is based on the contention that testator, under his will, retained an undisposed of reversionary interest in the trust which passed by intestacy at his death.

Two theories have been put forth in support of the claim of the persons (or their estates) who constituted testator's heirs at the time of the death of the last life beneficiary. One is that testator's undisposed of interest in the trust was not a reversion, but only a possibility of reverter. It is contended that a possibility of reverter is not an expectant estate within the meaning of the applicable Wisconsin statutes, and, as a result, is not descendible under statutes of descent and distribution. ³ The other theory is that testator's will and the final decree vested in the trustees all legal and equitable title to the trust assets, and that failure of the trust at the time of the death of the last life beneficiary thus brought into existence a resulting trust in favor of the persons who then constituted testator's heirs.

We deem one of the crucial questions to be whether the Gebhardts took vested or contingent remainders. If their remainder interests were contingent, not only would this demolish Hubmann's claim that he is entitled to take as heir of Rosalia Gebhardt, but it also would negate the contention advanced by other respondent claimants that the interest testator failed to dispose of by his will was a mere possibility of reverter and not a reversion. ⁴

In view of the foregoing, we consider the following to be the issues which should be resolved by the court:

(1) Is Hubmann, as the nephew of Clara Gebhardt, her 'descendant' within the meaning of subparagraph VII(3)(b) of testator's will?

(2) Did the Gebhardts' interests in the trust constitute vested or contingent remainders?

(3) Was it testator's intent that the distributees of the other residuary remainder should take in the event of the failure of the Gebhardt trust?

(4) Did a resulting trust come into existence upon the death of the last surviving life beneficiary due to the failure of the Gebhardt remainder?

(5) Upon the resolution of the foregoing issues, who is entitled to the distribution of the Gebhardt remainder?

These issues will be resolved in the order in which they are listed above.

Nephew as 'Descendant'

Hubmann's brief emphasizes that William E. Wehr was 53 years old on March 10, 1937, the day he executed his will. On that date Mrs. Clara Gebhardt was 80 years old and had as her sole issue four unmarried daughters ranging from 53 to 60 years of age. The ages of the four life income beneficiaries at that time ranged from 47 to 66 years old. The argument is then advanced that on March 10, 1937, testator reasonably anticipated that both he and at least one life income beneficiary would survive Mrs. Gebhardt and all her daughters and that all the daughters would die childless. Hubmann further argues that, since it must be presumed the testator did not intend to die intestate, he intended 'descendants' to mean 'all those to whom an estate descends, whether it be in a direct or collateral line.'

Mr. Wehr's will was prepared by a lawyer. Hubmann may be correct when he argues that 'descendant' in its popular sense includes collateral descendants. ⁵ Had Mr. Wehr drawn up his own will and had he been an uneducated man, respondent's argument might have substance. ⁶ However, it is common legal knowledge that 'descendants' do not include collateral relatives.

'A descendant is 'one who descends, as offspring, however remotely; correlative to ancestor or ascendant.' The term includes the most remote lineal offspring, and is practically synonymous with 'issue' in its primary meaning * * *

"Descendants' does not include collateral relations nor relations in the ascending line nor husband or wife.' 4 Page, Wills (Bowe-Parker rev.), pp. 451--53, sec. 34.23.

'As used in a will in designating beneficiaries, the term 'descendants' properly includes every person descended from the stock referred to, or all who can trace lineal descent to the remotest degree from the ancestor named, including children, offspring, offspring or posterity in general, progeny, and grandchildren or great-grandchildren. * * *

'It does not mean heirs of a person, including ancestors and collaterals, in the absence of very clear indication that the testator so intended. * * *' 95 C.J.S. Wills § 660, pp. 964--965.

There are some state court decisions which have construed 'descendant,' as used in a particular will or as used in a statute, in the manner argued for by Hubmann. ⁷ It is true that Wisconsin's statute of descent and distribution, sec. 237.01, refers not to 'descendants' but to 'lineal descendants.' However, this case does not involve the use of a word in an intestacy statute; ⁸ and there does not appear in the will or the surrounding circumstances any clear evidence that the lawyer draftsman intended to use the word 'descendants' in a sense other than its most common legal meaning. ⁹ The fact that the youngest life income beneficiary was six years younger than the youngest Gebhardt daughter, and that the latter was 53 years old and unmarried, does not constitute such clear evidence.

Undoubtedly, the lawyer draftsman intended that no part of his client's estate pass through intestacy. However, such general intention, which hopefully may be attributed in every case to every lawyer who drafts a will, is not enough to warrant a strained construction of the will. The lawyer could easily have used the word 'heirs,' as he did in Article XI of the will, and the court may assume that he pointedly chose not to in order to effectuate the testator's intent. ¹⁰

We conclude that Hubmann, as the nephew of Clara Gebhardt, was not her 'descendant' within the meaning of subparagraph VII(3)(b) of the will.

Were the Gebhardts' Remainder Interests Vested or Contingent?

Sec. 230.13, Stats., provides:

'Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right, by virtue of it, to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent whilst the person to whom, or the event upon which, they are limited to take effect remains uncertain.'

The late Dean Oliver S. Rundell, in his Introductory Commentary to ch. 230, W.S.A., pp. 6--7, points out the absurdity of this statute, and states that the statute should never have been adopted and should now be repealed. This is because the second and third sentences of the statute are contradictory. Frequently,...