Lawrence v. Barber

93 N.W. 30, 116 Wis. 294, 1903 Wisc. LEXIS 198

Opinion

Dodge, J.

1. The principal error assigned upon the appeal of the executor is the holding by the circuit court that-the sale of the homestead commanded by the second codicil was not to be performed by the executor in his official capacity as such, but by some trustee to be appointed by a court of equity; in accordance with which holding, Mr. Lawrence,. who was in fact executor, was appointed such trustee, and' was directed to pay the net proceeds to Edward B., Benjamin O. and Florence M. Barber, the trustees named in the fifth paragraph of the will, for immediate distribution, one-twelfth to the trustee of the grandchildren and eleven thirty-sixths to each of the three children. In this respect we are persuaded the circuit court erred. The authorities are numerous, ancl practically unanimous, that, where the sale of real estate is commanded by a will, obviously as a part of the settlement of that estate witbin tbe province of tbe probate court, and preliminary to tbe final accounting and distribution, tbe implication, in tbe absence of anything to sbow a different intention, is that tbe executor selected by tbe deceased to administer said estate and to execute said, will, is the person to perform such step, which is a part thereof. Bogert v. Hertell, 4 Hill, 500; Meakings v. Cromwell, 5 N. Y. 136; Lesser v. Lesser, 32 N. Y. Supp. 167; Meehan v. Brennan, 45 N. Y. Supp. 57; Lindley v. O’Reilly, 50 N. J. Law, 636, 15 Atl. 379. Tbe court below apparently felt constrained to bis conclusion by sec. 2128, Stats. 1898, providing that when a power in trust is 'created by will, and tbe testator has omitted to designate by whom the power is to be executed, its execution shall devolve upon tbe circuit court. Tbe fault in tbe reasoning which would apply this section to tbe situation under the present will is in assuming that tbe testator bad omitted to designate by whom tbe power of sale was to be exercised. Tbe effect of tbe authorities upon tbe subject is that by directing such a sale to be made as a part of tbe administration of tbe estate, and naming a person to execute tbe will and administer that -estate, by clear implication tbe testator does designate such 'executor as tbe person to perform tbe act. Mealcings v. Cromwell, supra.

Tbe further direction of this portion of the judgment that the proceeds of the homestead be paid over by the trustee making the sale to the three trustees named in the fifth para;graph of the will, to be by them at once divided, and paid over to the respective legatees, perhaps resulted from the error of the circuit court already pointed out, whereby he concluded that the sale was to be made outside of the ordinary administration of the estate, and by a specially appointed trustee, whence be conceived it necessary that the proceeds should •come back into the estate in some way, and adopted this direction as a method of accomplishing that result. As already •shown, this sale should be made by the executor in and as a part of the administration of the estate, and the proceeds, when realized by him, are part of the estate, — doubtless personalty, on the doctrine of conversion resulting from imperative command to sell. Being such, there is no reason why the •executor should not pay those proceeds directly to the persons to whom they are bequeathed, instead of adopting the circuity of procedure required by the judgment. There is nothing in the will expressly giving the trustees appointed by the fifth paragraph any right or authority over the homestead or its proceeds, and there is no necessity to involve them at all with reference thereto. Clearly, the whole purpose of the bequest is accomplished by directing the executor to pay the net proceeds of the homestead, one-twelfth to the trustee of the two grandchildren, and, in equal shares, to the three children of the testator, either thirty-three thirty-sixths or twenty-seven thirty-sixths, depending on whether or not there shall be found intestacy as to any portion of the homestead or its proceeds. Upon this assignment of error, therefore, the judgment must he modified to declare that the sale commanded shall be made by the executor in his official character, and the proceeds paid and distributed as personalty directly to the trustee of the .grandchildren and to the three children of deceased.

2. The next question which is raised by assignment of ■error upon the appeal of the three children of the testator is whether the bequest contained in the second codicil, to the two grandchildren, of an undivided one-twelfth interest “in all my estate, real, personal, and mixed,” extends to the household effects and homestead. The appellants alleging this error ■contend that it is apparent from the character of the property •and from the general scheme of the codicil that the testator ■did not intend to give to these grandchildren an interest in •anything except the residuum of the estate devised and bequeathed to trustees for realizing and distribution by the fifth paragraph of the will. While conceding that there are ■some circumstances which tend with more or less cogency to tbis conclusion, we cannot deem tbem sufficient to overcome tbe express command that these grandchildren are to have the one-twelfth of all the estate. The word “all” in that connection is too significant, definite, and unambiguous to warrant us in entering upon the field of interpretation and holding that, instead of all, part only was intended. Further, such construction would render meaningless the direction of the codicil that the proceeds of the homestead be disposed of “according to the terms of my will and the provisions of the first and second codicils thereof.” There are no provisions of such codicils having any relevancy, unless the gift of one-twelfth to the grandchildren applies to the homestead.

3. The next in natural sequence is the principal assignment of error and ground of appeal, assigned by the guardian ad litem, of the two grandchildren, — for that the court held that there was'no intestacy with reference to the portion of the estate which by the will had been given to ITarry C. Barber, and by a revocation contained in the second codicil was prevented from passing, under the statute (sec. 2289, Stats. 1898), to his issue, and that by clear and necessary implication this portion of the estate, after deducting the one-twelftli by that codicil bequeathed to the grandchildren, was bequeathed to the three surviving children of the testator, the contention of these appellants being that the result of the revocation of the bequest to Harry C. left his one-fourth of the homestead and thirty-three one hundred forty-fourths of the other property intestate, except that one-twelfth of each of said shares was specifically devised by the codicil; that, as a result, the said minors, as heirs at law of the testator, were entitled to inherit one-fourth of these fractions, towit, one twenty-fourth of the proceeds of the homestead, and a slightly less fraction of the residuum of the estate devised by the fifth paragraph of the will to the trustees for collection and distribution. The preliminary and difficult question is, however, whether there is intestacy as to any part of the estate, or whether there can be found in the words of the will and its codicils, read in the light of all the surrounding facts and circumstances, an implied devise or bequest of all of the estate to any one, and, if so, to whom. Much of the discussion is addressed to establishing the negative intention of the testator that there should be no intestacy, and that the two children of Harry 0. Earber should receive nothing from said estate except the one-twelfth placed in trust for them upon a condition subsequent to revert in case of their death without issue before majority. There is but little controversy or doubt that the testator supposed and expected there would be no intestacy, and no share of his estate to pass to these grandchildren, except the specified one-twelfth. That is supported by a presumption that one who makes a will intends to dispose of all his property, and by many inherent probabilities disclosed by the will and codicils themselves, to be suggested later. But this is inconclusive. Intestacy and the rights of heirs depend not on whether the testator intended such a situation should exist, or supposed it would exist,, under his will, but whether he has, by the will, disposed of all his property. The strongest of negative declarations on his part cannot serve to prevent either intestacy or rights of heirs at law. Those arise necessarily and by force of law, unless the testator has given all his estate to some one. If as to any portion of the estate we are unable to say that it is given by the will and the codicils, then intestacy results, no matter how averse the testator may have been thereto; and the right of the heir to his legal portion must be declared, however strenuous had been the testator’s wish and purpose-to cut him off. Parsons v. Millar, 189 Ill. 107, 59 N. E. 606; O’Hearn v. O’Hearn, 114 Wis. 428, 90 N. W. 450. On the’ other hand, it is not absolutely imperative that the express- and unambiguous words of gift and designation of beneficiaries should be physically written in the will, in order that the court may be able to find, tbat tbe testator lias thereby made donation. The doctrine of bequest by implication rests upon the proposition that courts may be able to find by the words used, not only that the testator had an intent that his property should go in a certain direction, but that he has so attempted to declare that intent and purpose that courts can find it by necessary implication from the words used. Schou-ler, Wills, § 561; Underhill, Wills, § 463 et seq.; Earl v. Grim, 1 Johns. Ch. 494; In re Vowers’ Will, 113 N. Y. 569, 21 N. E. 690; Masterson v. Townshend, 123 N. Y. 458, 25 N. E. 928; Powell v. McDowell 194 Ill. 394, 397, 62 N. E. 819; Hand v. Marcy, 28 N. J. Eq. 59; Baker v. McLeod’s Estate, 79 Wis. 534, 48 N. W. 657; In re Donges’ Estate, 103 Wis. 497, 79 N. W. 786; Davies v. Davies, 109 Wis. 129, 85 N. W. 201; O’Hearn v. O’Hearn, supra. The limitation on courts to merely construe the will made, and not to make such a will as they believe the testator wished, but did not make; to find in the words used an attempt to declare a given purpose, not to attempt to give effect to an actual, but wholly undeclared, purpose, — was not so carefully stated as it should have been in the opinion in In re Donges’ Estate, supra, although the decision made in that case was distinctly within such bounds. The court there found in the limitation upon the wife’s title and the condition upon which she was to take absolutely a clear attempt to declare testator’s purpose that his children should take the real estate upon the contingency named. The duty of courts in raising devises by implication was accurately expressed in O’Hearn v. O’Hearn, 114 Wis. 432, 90 N. W. 451, thus:

“It is only admitted as a means of carrying out what the testator appears on the whole to have really meant, but failed somehow to express as distinctly as he should have done. In other words, a gift by implication must be founded upon some expressions in the will from which such intention can be inferred. It cannot be inferred from an absolute silence on tbe subject. . . . Tbe court cannot reform tbe will by changing its language, or add provisions not written therein. It can only construe tbe instrument as written.”

Tbe problem before us, therefore, is whether we can find in tbe words used by tbe testator, in either will or codicil, or •all combined, an attempt to declare a gift to any one of tbe one-quarter of bis estate which was given to Harry C. by tbe will as originally drawn. While, as we have already said, the clearest intention of tbe testator against intestacy or against tbe right of an heir at law to inherit any of tbe property is inconclusive, it is by no means without weight in interpreting and construing the language used. It is one of those •attendant circumstances which serve to aid the court in understanding what was attempted to be expressed by the language used. The court may avail itself of that and the other circumstance to put itself as nearly as possible in the situation of the testator at the time when the words of the will were written (Brittingham & H. L. Co. v. Manson, 108 Wis. 221, 84 N. W. 183), to re-establish the light and atmosphere in which was painted the “picture of the mind” of the testator, as a will is sometimes called, so that it may appear to the reader as it did to the writer. We have already said that we think it very apparent that the testator did not wish nor intend to leave any of his property intestate, nor any to descend absolutely to his grandchildren. The whole scheme •of the will and codicils shows this; but especially convincing is the declaration of the codicil that testator does not purpose that any part of his estate shall pass to or under the control of the mother of these grandchildren, directly or indirectly. That purpose will be thwarted if anything passes to them as intestate property, especially if either of them should die unmarried and intestate, so that the mother would take as heir of her child. Again, the provision for reversion to the estate of the share of either grandchild upon death •during minority, for distribution according to will and codi- oils, is utterly incongruous with tbe idea tbat a portion of that share, when it has reverted to testator’s estate, immediately becomes repayable to the personal representative of the same deceased grandchild as intestate property. For these and other considerations it is doubtless our duty to read the will as attempting to dispose of the entire estate, but nevertheless we must be limited by the necessity of finding words therein capable, by construction, of indicating the testator’s wishes as to such disposition. The mere revocation of bequest to Harry 0., even accompanied by confirmation of all the rest of the will, probably would not, under the authorities, suffice to justify an implication of gift of that share to any or all the other beneficiaries. Creswell v. Cheslyn, 2 Eden, 123; Ramsay v. Shelmerdine, L. R. 1 Eq. 129; Minkler v. Simons, 172 Ill. 323, 50 N. E. 176; Masons Ex’rs v. Trustees, 27 N. J. Eq. 47; Harrington v. Pier, 105 Wis. 485, 498, 82 N. W. 345. As this court has declared, however, precedents are of very slight utility in construing wills, for the reason that trifling differences of circumstances, verbiage,, or context may wholly change their significance, give a different color to the instrument, and necessitate an entirely different conclusion as to testator’s intent. Swarthout v. Swarthout, 111 Wis. 102, 108, 86 N. W. 558; Becher v. Chester, 115 Wis. 90, 91 N. W. 87, 97.

In the will before us, with its codicils, we certainly find more to indicate that testator at least supjDosed that he had used words declaring full disposal of all his property than in any of the cases cited in support of the conclusion of partial intestacy, and we should do wrong to blindly follow those precedents, if we can read out of those words the meaning which the testator attempted, to write into them. One highly significant paragraph of the codicil is the direction that “immediately after my death my said homestead shall be sold, and' the proceeds thereof disposed of according to the terms of my last will and the provisions of my said first and second codi- oils thereof ” Tbe ‘proceeds’ are to be thus disposed oí; not five-sixths thereof, leaving one-sixtb to tbe law of descent or distribution. Now if, witbin tbe four corners of tbe will and codicils in combination, exist directions as to where shall go all of those proceeds, we should struggle to -find them. Within that instrument are named but five persons whom the testator directs shall receive any share of those proceeds. They are Edward B., Benjamin 0., Florence M., Charles M., and Buth E. Barber. Among these the expressed proportions are to Charles M. and Buth E. one-twelfth shared, equally, and no more; to Edward, Benjamin, and Florence, in equal shares. Is it not reasonably implied that the last three take all except one-twelfth, or each eleven thirty-sixths ? But, insists the guardian ad litem, by the original will only one-fourth is given to each of these children, and the codicil contains no gift of anything more. Such a construction, he argues, adds to the codicil what the testator did not put in it, namely, a gift of two thirty-sixths to each child. This insistence embodies a fallacy, though it is found in some of the cases cited. The will alone does not give one-fourth. It never became effective to give anything. The last will and testament of Edward Barber, deceased, consists not of one paper, but of three, and they, interacting on each other, speak his purpose as of the date of his death. It by no means follows, because certain phraseology used by the testator in 1891, under circumstances then existing, and in the context then adopted, would have resulted in devise of only one-fourth of the homestead to each child, that the same phrase used in 1900 or 1901 under different circumstances, and in different context, does not declare a gift of a different proportion. When the will finally took effect the written declaration of testator’s purpose was that the entire proceeds of the homestead should be divided between the five persons above named, and that to two of them only one-twelfth should go. We think the gift of eleven thirty-sixths to each of the remaining three is as necessarily implied, and the intent to that effect as plainly declared, as if stated in hcec verba. A similar implication with reference to tbe shares in the proceeds of the residuum to be realized by the trustees under the fifth paragraph of the will perhaps cannot be supported by such absolute and direct demonstration as that applied to the proceeds of the homestead, but the meaning of the phraseology used as to one bears on the testator’s purpose in using similar expression as to the other. If by the language used with reference to the entire proceeds of the homestead testator intended to declare his will that all of such proceeds except one-twelfth should go in equal shares to his three living children, and supposed he had declared it, there is great probability that he indulged in the same intent and supposition when, by retaining them in 1900, he used similar and quite equivalent words to express his wishes as to the eleven-twelfths of the proceeds of the residuum. That these words were adopted in 1900 by the testator as declaring a full and complete disposal of all such residuum, and as naming all the persons who were to share therein, is strongly indicated by the clause in the codicil already mentioned, providing for reversion of the share of either grandchild dying a minor, and the division of that share “according to the provisions of my last will and testament and the first and second codicils modifying the same.” This evinces the testator’s understanding that he had designated in those documents the persons among whom was to be divided all of the residuum of the estate, and by process of reasoning similar to that applied to the homestead we can ascertain the only possible proportions consistent with a complete division. The benéficiaries are: First, the stepdaughter, one-twelfth; second, the two grandchildren, one-twelfth, and no more; and, third, Edward, Benjamin, and Florence, equally. The implication seems plain that the last three must take ten-twelfths between them, or ten thirty-sixths each. These conclu sions accord witb those of tbe circuit court upon this branch of the subject, as embodied in its judgment, aud the assignments of error predicated upon the decision as to the respective proportions of the litigants cannot be sustained.

4. The guardian ad litem, of the grandchildren also assails as erroneous that construction of the will and codicils which holds that the share of the grandchildren in the residuum of the estate is controlled by the fifth paragraph of the original will, vesting all such property in trustees, to care for and dispose of the same, and to pay over to the beneficiaries the proceeds of such management and disposal. Instead thereof he contends .that the codicil gives absolutely one-twelfth to the grandchildren, so that they take legal title to such share of each specific parcel of real estate at least, and not a mere beneficial interest in the proceeds. The policy and intent of the testator to vest the legal title to all this property in adult persons presumably familiar therewith, in order to facilitate its speedy sale and reduction to money, and avoid the delays and obstacles resulting from the necessity of consulting all the beneficiaries as to sale of each parcel and from the legal steps necessary to effect transfer of minor’s interests, seems to us entirely plain. Such purpose would be thwarted by the construction suggested by the guardian ad litem. The trustees could make sale of only undivided eleven-twelfths without consent of those representing the grandchildren’s interest. This, obviously, if it did not prevent sales, would impair the probability of obtaining full price for the fractional interest under the trustees’ control. We find it impossible to believe in an intent to thus thwart and embarrass so well digested and so important a general plan as that set forth by the fifth paragraph of the original will, nor do we think the provisions of the codicil necessarily inconsistent therewith. The share of the father of these appellants, which might have passed to them but for the revocation, was merely a beneficial interest in the proceeds of the trustees’ management, and the purpose is obvious that tbe diminished share given by the codicil is intended to be conferred under the same restrictions. We are satisfied that the construction adopted by the circuit court was correct. This being so, these appellants can have no interest in the question whether or not the trust is valid as to the interests of those who are at once trustees and beneficiaries, nor in the inquiry as to whether there is any merger as to such interests.

Several suggestions are made by the guardian ad litem for certain modifications of the details of administration of this property, but they are all either so obviously perversive of the directions of the testator, or so entirely within the sound discretion of the trial court, that their discussion here may be dispensed with. Our conclusion is that the judgment of the circuit court is correct in all respects except with reference to the manner of sale of the homestead and disposition of the proceeds thereof.

By the Court. — The judgment of the circuit court is modified so as to declare it the duty of the executor, in his official capacity as such, to immediately sell the homestead of the deceased, and to pay the net proceeds thereof one-twelfth to such person as shall be appointed trustee for Charles M. and Ruth E. Barber, and eleven thirty-sixths thereof to each of testator’s three children Edward B., Benjamin C., and Florence M. Barber; and, as so modified, the judgment is affirmed. The taxable costs of the several parties in this court will be paid out of the estate.