Miller v. Payne

136 N.W. 811, 150 Wis. 354, 1912 Wisc. LEXIS 218
Wisconsin Supreme Court·Decided October 8, 1912·Published·Cited by 26 cases

Opinion

Tbe following opinion was filed June 4, 1912:

ViNJE, J.

Tbe appeal of Mrs. Gamer on presents these questions: (1) When did tbe trust estate rest — at tbe time of tbe death of tbe testator or at tbe time of tbe partial division of tbe estate, December 30, 1909 ? (2) Should corpus bear tbe loss of tbe Bigelow defalcation? (3) Should tbe National Surety Company’s dividend of $250,000, declared in January, 1911, go to life tenant or remainderman, or partly to both? (4) Was tbe First National Bank dividend of $532,617.12, declared in May, 1911, in fact a dividend, or did it remain corpusf (5) If a dividend, was it derived from profits earned since tbe trust estate vested ? and (6) Should corpus pay one half the compensation awarded tbe trustee? Tbe appeal of Mrs. Payne challenges tbe correctness of the finding that tbe dividend of the St. Paul Avenue Improvement Company of $100,000 declared in January, 1911, was paid out of corpus.

Before taking up these questions in detail it may be well to consider briefly tbe general scheme of tbe testator’s will. It clearly contemplates three distinct periods of administration of tbe estate by tbe executors and trustees: First, tbe period of tbe settlement of tbe estate, during which time it is to remain in tbe bands of the executors. This period was by the codicil limited to five years from tbe death of tbe testator, unless bis widow and sister should desire it to remain unsettled for a longer period of time. During tbe period of settlement specific annuities are required to be paid tbe widow and sister and others, and no provision is made for tbe disposition of income. It therefore goes to corpus during such period. The testator died October 4, 1904, and the estate was settled February 5, 1906, and then assigned to tbe trustee, George [373]*373P. Miller. Second, the period elapsing between the settlement of the estate and the partial division thereof as required by subdivision 7 of paragraph 8. This period was limited to three years from the time of the'settlement of the estate, or to the time of the widow’s death should it occur earlier. During this period specific annuities were to be paid the widow and sister and others, and the net income in any one year to be paid seventy-five per cent, to the widow and twenty-five per cent, to the sister. At the end of this period, after the payment of certain specified legacies, one half of the estate was to be assigned to the widow, one quarter to the sister, and one quarter retained by the trustees, and the net income thereof paid to the widow during' her life, and upon her death to assign the principal to his sister, should she survive the widow, otherwise to his sister’s son, Winfield H. Qameron. The partial distribution of the estate took place December 30, 1909. Third, the period between the partial distribution of the estate and the death of the widow, during which time the trustees were to hold one quarter of the estate and pay the net income to her.

From the time of the settlement of the estate to the time of the partial distribution thereof all net income received was paid seventy-five per cent, to the widow and twenty-five per cent, to the sister, as directed by the will. Since the estate was divided in specie and the division of net income and of estate go to the widow and sister in the proportion of seventy-five per cent, to twenty-five per cent, (including in widow’s share the one quarter of the estate held by the trustee for her use), it becomes immaterial to ascertain how much, if any, of the dividends in question were earned prior to the partial distribution of the estate; for after such partial distribution the widow is entitled to the net income of seventy-five per cent, of the estate — the fifty per cent, assigned to her and the twenty-five per cent, held by the trustee, — and the sister is entitled to the income of her twenty-five per cent, of the estate, [374]*374which is just in the same proportion in which they shared net income prior to the partial distribution. In other words, the percentage of stock from which they derive income after the partial distribution is just the same as the percentage of income they had from the stock before such distribution.

Aside from specific legacies and annuities mentioned in the will of the testator, the whole estate held by the trustees was to be assigned to the widow and sister, one half to the widow and one quarter to the sister, at the time of the partial distribution, and the other one quarter to the sister upon the-death of the widow, should the sister survive, and, if not, to her son, Winfield H. Cameron. There is a direct specific devise of the estate to the trustees for the purpose of so disposing of it. Such devise, in the absence of any language in the will evidencing any intention to postpone or delay the time it is to take effect, must be regarded as vesting the estate in the cestuis que trustent at the time of the death of the testator. Patton v. Ludington, 103 Wis. 629, 79 N. W. 1073; Matter of Brown, 154 N. Y. 313, 48 N. E. 537. There is no uncertainty as to who are the cestuis que trustent. They are specifically named in the will. Three quarters of the estate was to be assigned directly to them within three years of the settlement of the estate without any intervening estate in any one, and the other quarter was subject only to the life estate of the widow. They were all in being, at the time of the death of the testator. The widow had the immediate right to the possession of one half the estate upon the partial distribution thereof. The sister had the immediate right to the possession of one quarter of the estate at the same time, and to the other quarter upon the termination of the life estate of the widow therein. There is nothing in the will to make the persons to whom, or the events upon which, the estates are to take effect, uncertain. Their estates therefore vested at the time of the death of the testator. In Venner v. Mauer, 133 Wis. 325, 113 N. W. 663, it was held that “where a will pro[375]*375vides for the payment of interest on a fund to a legatee till a specified time, and then for payment of principal to him, the presumption is, nothing appearing convincingly to the contrary, that the purpose of the testator was that the right to the fund- itself should vest in such person at the time of the vesting of the right to the use.”' Page 335. In the devise of the estate to the widow and sister the element of time was not annexed to the devise itself as a condition precedent thereto, but was annexed merely to the time of the assignment thereof. The devise was absolute, and was to be enjoyed at a fixed time in the future. It therefore vested when the will took effect, namely, at the time of the death of the testator. Ohse v. Miller, 137 Wis. 474, 119 N. W. 93.

It appears that during the administration of the estate the executor, George P. Miller, paid .to the First National Bank of Milwaukee $66,666.67, being the amount assessed upon the 1,000 shares of capital stock of said bank belonging to the estate. An assessment of sixty-six and two-thirds per cent, was levied by the stockholders of said bank upon all the capital stock thereof in order to make up the amount by which the capital of said bank had been impaired through the defalcation of its president, Frank G. Bigelow, who was named as an executor and trustee of the will of Henry 0. Payne, but who resigned and left the trust to be executed by the present trustee, George P. Miller.

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Miller v. Payne, 136 N.W. 811, 150 Wis. 354, 1912 Wisc. LEXIS 218 (Wis. 1912).

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