Williams v. Williams

• Decision Date: 10 March 1908
• Citation: 135 Wis. 60,115 N.W. 342
• Parties: WILLIAMS ET AL. v. WILLIAMS ET AL.
• Court: Wisconsin Supreme Court

135 Wis. 60

115 N.W. 342

WILLIAMS ET AL.

v.WILLIAMS ET AL.

Supreme Court of Wisconsin.

March 10, 1908.

Appeal from Circuit Court, Walworth County; E. B. Belden, Judge.

Action by Henry Eddy Williams and others against Peter C. Williams and another, individually and as executors of the estate of Henry V. Williams, deceased. From the judgment rendered, plaintiffs appeal. Reversed.

Among other references upon the part of the appellant were the following: Stephenson v. Norris, 128 Wis. 242, 107 N. W. 343;Will of Hess, Huebschmann v. Cotzhausen et al., 97 Wis. 244, 72 N. W. 638; St. 1898, §§ 4044, 4050; Appeal of Edward Schaeffner, 41 Wis. 260;Liginger v. Field et al., 78 Wis. 367, 47 N. W. 613;Bresee v. Stiles et al., 22 Wis. 120;Ruth et al. v. Oberbrunner, 40 Wis. 238;Brooks et al. v. Chappell, 34 Wis. 405;Jones v. Roberts, 84 Wis. 465, 54 N. W. 917;Baker et al. v. Baker, etc., 57 Wis. 382, 15 N. W. 425; section 2206, St. 1898; Baker v. Estate of McLeod, 79 Wis. 534, 48 N. W. 657; sections 2289, 2278, St. 1898; Hall v. Hall et al., 98 Wis. 193, 73 N. W. 1000; In Matter of Prosper A. Pierce, 56 Wis. 560, 14 N. W. 588;Prickett v. Muck, 74 Wis. 199, 42 N. W. 256;Hiles v. Atlee et al., 90 Wis. 72, 62 N. W. 940;Patton et al. v. Ludington et al., 103 Wis. 629, 79 N. W. 1073, 74 Am. St. Rep. 910;Smith v. Smith, 116 Wis. 570, 93 N. W. 452;In re Moran's Will, 118 Wis. 177, 96 N. W. 367;Stark et al. v. Conde, 100 Wis. 633, 76 N. W. 600; Rood on Wills, §§ 582, 588; Cassoday on Wills, §§ 664, 667. Among other references upon the part of the respondent were the following: Section 2081, St. 1898; Scott v. West, 63 Wis. 529, 24 N. W. 161, 25 N. W. 18; section 2088, St. 1898; Holmes v. Walter, 118 Wis. 409, 95 N. W. 380, 62 L. R. A. 986; Redfield on Wills, 410, note; Tif. & Bull., Trusts and Trustees, 57 and 58; Tiedeman on Real Property, § 366; Underhill on Wills, §§ 473, 779; Jones v. Roberts, 84 Wis. 465, 54 N. W. 917.John P. Ingalls, for appellants.

James G. Kestol (Murphy & Kroncke, of counsel), for respondents.

TIMLIN, J. (after stating the facts as above).

Henry V. Williams died November 19, 1900, leaving real and personal estate which he devised and bequeathed: (1) Use of all to his widow Elizabeth during her natural life, with full power and authority to manage and control the same; (2) household furniture to his daughter Cora A.--this gift to take effect at the death of the widow; (3) to his daughter Cora A. one-third of all remaining at death of widow; (4) to his son Peter C. one-third of all remaining at death of widow; (5) as follows: “I will, devise and bequeath unto my said daughter Cora A. and son Peter C. Williams the other one third part of my said estate remaining at the death of my said wife Elizabeth in trust, nevertheless for my son Henry E. Williams and authorize and direct them to use and manage said other third part as to them seems best and pay to my said son Henry E. the income of such third part yearly and in their discretion to pay to him from time to time such part of said one-third as in their judgment is proper for his comfort and support until said one-third part is all paid to him the said Henry E.”

This will was admitted to probate December 18, 1900. The executors thereof on July 18, 1901, made application to the county court for the settlement and allowance of their final account, and the assignment of the residue of the estate to such persons as were by law entitled thereunto. Upon this application the county court made an order reciting the application as above stated and continuing: “It is ordered that said application be heard before this court, at a special term thereof to be held at the probate office, in the city of Elkhorn, on the 20th day of August, 1901, at 10 o'clock a. m. It is further ordered that notice of the time and place of examination and allowing said final account and of assigning the residue of said estate be given to all persons interested, by publication of a copy of this order, for three successive weeks, in the Whitewater Register, a newspaper published in said county, before the day fixed for said hearing.” An order made August 20, 1901, thereupon recited the said application, and that “due notice of the time and place of such hearing has been duly given by publication as required by law and the order of this court heretofore made in this case.” This order then described the property then remaining in the hands of the executors as $334.10 in money, and 100 acres of land, and three lots in the village of Whitewater, all specifically described. It recited that the deceased left him surviving his widow, Elizabeth, and his only children, Cora, Peter C., and Henry E. Williams, all over 21 years of age, and that proof of heirship had been made and filed. The order then proceeded: “Wherefore it is ordered and adjudged by the court that said final account of said executors as stated be, and the same is hereby, allowed and confirmed. And it is further ordered that said balance of personal property shown by said final account be, and the same hereby is, assigned to the said three children as provided in the said will of the deceased, Henry V. Williams. And it is further ordered and adjudged that said real estate hereinbefore described be, and the same is hereby, assigned to said three children, Cora, Henry E., and Peter C. Williams, share and share alike and undivided, as provided in the will of said deceased, Henry V. Williams, and all of said personal and real property is subject to the life estate of the said widow, Elizabeth Williams, as provided in said will.” The scope and effect of this order assigning the estate is the subject of much discussion, but in the view we have taken of the provisions of the will it will not be necessary to determine the conclusive effect of this order upon the parties then before the court. See, however, Perkins v. Owen, 123 Wis. 238, 101 N. W. 415;Appeal of Edward Schaeffner, 41 Wis. 260;Id., 45 Wis. 614;Estate of Leavens, 65 Wis. 440, 27 N. W. 324;Baker v. Baker, 57 Wis. 382, 15 N. W. 425;Ruth v. Oberbrunner, 40 Wis. 238.

On December 17, 1902, Henry E. Williams died intestate. On March 17, 1904, Elizabeth Williams died intestate. Henry E. left surviving him his widow, Ida M., his son, Henry Eddy, and his daughter, Edith A. Williams, who, together with the administrator of Henry E. Williams, are the plaintiffs in this action, begun in the circuit court against Peter C. and Cora A. Williams individually and as executors. All parties assumed the jurisdiction of the circuit court, and both prayed for affirmative relief, opposite in effect, but of the same legal nature. The findings and decree of the circuit court were to the effect that the trust of one-third of the residue for Henry E. Williams failed on account of his death before the termination of the life estate and the commencement of the active duties of the trust, and that this one-third thereupon became intestate property of the estate of Henry V. Williams, and, as such, descended in equal parts to the heirs at law of Henry V. Williams, deceased, but without naming or otherwise designating who were such heirs at law. The circuit court also found that such heirs at law were entitled to partition.

Returning now to the paragraph of the will under consideration it is noticeable that in quantity of estate the testator provided equally for each of his three children, that each was to have one-third of the remainder subject to the life estate of the mother. To Peter C. and Cora A. he gave a full legal vested estate in remainder. From Henry E. he withheld the legal title and power of disposition, but this one-third of the remainder was “in trust nevertheless for my son Henry E.” No limitation over was provided, and no contingency upon which the trust should cease or terminate was specified. After the death of his mother, although the use and management of the trust property was confided to the discretion of the trustees, they...