Duggan v. O'Brien

180 N.W. 141, 173 Wis. 41, 1920 Wisc. LEXIS 291

• Court: Wisconsin Supreme Court
• Decided: December 14, 1920
• Status: Published

Opinion

Vinje, J.

Speaking of the remainder of his estate after the'specific legacies and debts and expenses have been paid. the testator says: “I give and bequeath one sixth of said sum ... to my grandson John Joseph O’Brien,” to be paid to him with accumulated interest -when he shall arrive at the age of thirty years. We have here a gift in prcesenti, absolute in form, with no restriction except a postponement of the time of payment. In such case the interest of the legatee vests upon the death of the testator, unless a contrary intent can clearly be gathered from the will; Scott v. West, 63 Wis. 529, 24 N. W. 161, 25 N. W. 18; West v. Andrews, 166 Wis. 509, 166 N. W. 31. The law favors an early vesting of title. Moran’s Will, 118 Wis. 177, 96 N. W. 367; Will of Owens, 164 Wis. 260, 159 N. W. 906; West v. Andrews, 166 Wis. 509, 166 N. W. 31. And unless the- element of time is made a contingency upon which-the legatee takes, a mere • postponement of time does not prevent his interest from vesting where-there is a'present absolute gift, as there is here. In' such case the element of time is held annexed to the time of payment and not to the-substance of the gift. Patton v. Ludington, 103 Wis. 629, 79 N. W. 1073; Ohse v. Miller, 137 Wis. 474, 119 N. W. 93. We perceive no intention -in the will or circumstances of the testator or legatees to negative an intent to vest the legacy upon the-death of the "testator. ■

So, too, in consonance with such construction, it follows that the death mentioned in paragraph 13 refers to a-death occurring in the lifetime of the testator. ■ It is not so strange that he should consider' the possibility that he.might survive some of his grandchildren as it-is.that he should consider the possibility that--the bequest to some-of them might.not need investment, though not'to be paid them till’they, arrive at the age -of thirty years, for- he says: “And in case-said sum so given my grandchildren-; . -', must-be loaned out by-my said executor.” The youngest grandchild was only six years old at the time the will was made, and the testator was-then seventy-nine years of-age.y ' ;

■ The -death referred to in paragraph 12 must-also be construed to refer to a death in the lifetime of the testator. The contingent bequest to the child or children of Edmund or to the children of Michael is of the whole sum left to Edmund, not to any part thereof, as the county court found. It is manifest that if the testator referred to a death of Edmund after his own decease, he would have to consider, that only a portion of the trust fund might be left. But he'does not speak of a portion-but of the whole thereof, showing that it was a death in his own lifetime he had in mind when the whole trust fund to Edmund would be left intact.

If upon the death of Edmund there should be any portion of his trust legacy left, it would have to be disposed of as the intestate property of the testator. To this extent the judgment of the county court is modified and as so modified is affirmed, with costs to the respondent to be paid out of the estate.

By the Court. — Ordered accordingly.

Esci-twetler, J., dissents.