Pinney, J.
1. The objections made by appellants in their brief against the construction placed upon the testator’s will by the county and circuit courts were not pressed in argument, but we have examined them, and arrive at the conclusion that they are not well taken. We do not think that it was intended to create any trust in the will in favor of -the testator’s daughter Barbara for the sum of $1,800, or for one sixth of the residue of the estate, but that, upon a fair construction, the word “ to ” is to be supplied after the word “ and,” in the third and fourth paragraphs of the will, so that she took under it a legacy for $1,800 and one sixth of the residue, free from any trust in Louis Schinz. If it can be said that any trust was intended, the will does not state its terms, and it would be but a mere naked, passive-trust, which would be valid as to personal estate, and as to real estate would be executed as a legal estate in her favor by force of the statute. Secs. 2071, 2075, R. S. In either [244]*244event, the judgment of the county court directing payment of these legacies to Barbara Schinz was correct. The general legacy of $1,800 given by the third clause of the will, and the legacy of one sixth of the “ rest, residue, and remainder ” of the estate, under the fourth clause, to Louis Schinz as trustee of the testator’s son John Zentner, are the only legacies referred to in the fifth clause of the will as give to Louis Sehhnz as trustee, and they are given to him for John Zentner upon the active trusts specified in that clause of the will.
2. The judgment in respect to the bequests in trust for John Zentner does not deviate in the least from the plain and unmistakable language of the will, but recites it. John Zentr tier did not predecease the testator, and if' he shall leave, when his death occurs, any child or children surviving him, then his interest or his share is to be paid to such child or children, and when the youngest arrives at full age the principal is to be divided equally between them. As John Zeni-ner is still living, it cannot be known whether he will die without leaving children. The question whether the time of his death without leaving children, upon which event the principal sum given in trust for him is given to the other children of the testator, refers only to his death before that of the testator, or after (Washbon v. Cope, 144 N. Y. 281), is not involved in the case, for there was no one before the court in, any position to assert or resist any claim, under either view of that question. The judgment will not, therefore, be conclusive either way,. when the question occurs and becomes a practical and material one with proper claimants before the court. Until then the question is a speculative one merely, upon which no binding judgment could properly be given.
3. The testator did not give any general legacy to his daughter Maria Schinz, but left to his son Fredolin, in trust for her, “ one sixth of the rest, residue, and remainder ” of [245]*245bis estate, after providing for bis wife and tbe payment of tbe several legacies for $1,800 each. He did not give ber any general legacy for $1,800 or any other sum. By the codicil to his will, made about three years afterwards, the testator, after reciting the bequest in trust for his daughter Maria, in terms as above quoted, revokes it, and “ instead thereof ” gives and bequeaths to her “ in her own right the said one-sixth of the rest, residue, and remainder of the estate which shall remain after the death ” of his wife, Barbara Zentner. It is contended that by the codicil Maria Schinz is entitled to one sixth of the corpus of the estate before payment of the several general legacies for $1,800 each, and debts and expenses of administration. "We think that the only effect of the codicil is to turn the trust estate in favor of Maria Schinz, under the will, into a legal one, and not to increase her legacy in any amount. Her share in the resichue under the original will is expressly referred to, and the bequest in the codicil is to be in her own right and the said one-sixth of the rest, residue, and remainder of his estate, which clearly refers back to the fourth or residuary clause of the will, although there are added the words, “ which shall remain after the death of my wife.” No part of the corpus of his estate was devised to bis wife. She took only such part of the income after his death as she might require, and there could, properly speaking, be no “ rest, residue, and re-, mainder ” of the estate until the general legacies and debts and expenses of administration were paid. The evident purpose of the codicil was to leave the rights of Maria Schinz under the will in the same plight and condition as if no trust provision of the legacy in her favor had been originally incorporated in the will.
Eor these reasons we are of the opinion that no reversible error occurred in that part of the judgment construing the testator’s will.
4. The executor, as such, took the legal title to'the entire [246]*246estate, it consisting of personal estate, for tbe purposes of administration. Tbe rights of tbe widow under tbe will extended only to sucb portion of tbe income of tbe estate as might be required for her own use, and tbe rest, if any, was to be added to tbe principal. Tbe executor was entitled to bold tbe estate upon tbe trusts implied by law from tbe will (Ford v. Ford, 70 Wis. 19) to collect and pay over sucb income from time to time to tbe widow during her life, and to hold tbe bequests in favor of John Zentner upon tbe express trusts specified in tbe will. These trust duties would continue for tbe contemplated period, although bis duties as executor might be sooner terminated. He would, however, continue to bold tbe estate as executor until be should qualify as testamentary trustee, and as it does not appear that be bad so qualified, be held tbe estate by bis title as executor until be settled bis final account. R. S. sec. 4025; Newcomb v. Williams, 9 Met. 525, 534. It appears that tbe widow died in January, 1891, and on tbe 31st of that month tbe executor filed bis final account for settlement. Until after tbe death of tbe widow there could be no judgment of distribution, and in tbe meantime tbe estate would necessarily remain in tbe bands of tbe respondent, to be managed and cared for by him, either as executor or as testámentary trustee; and, in any event, at tbe reasonable cost and expense of tbe estate.
5. There was a trial upon issues made up in tbe county court pursuant to its rules in respect to certain portions of the respondent’s final account relating to certain expenses of administration, investment, and management of tbe estate alleged to be illegal and excessive, namely, an allowance to tbe respondent for attorney’s fees and extra compensation claimed by him in addition to statutory commissions and per diem, with tbe result set out in tbe foregoing statement. Tbe record shows that the-respondent was examined in open court, and that tbe court beard tbe allegations and all the [247]*247evidence. The appellants appealed to the circuit court. The statute (sec. 4034, R. S.) provides that on such appeals “
Free access — add to your briefcase to read the full text and ask questions with AI
Pinney, J.
1. The objections made by appellants in their brief against the construction placed upon the testator’s will by the county and circuit courts were not pressed in argument, but we have examined them, and arrive at the conclusion that they are not well taken. We do not think that it was intended to create any trust in the will in favor of -the testator’s daughter Barbara for the sum of $1,800, or for one sixth of the residue of the estate, but that, upon a fair construction, the word “ to ” is to be supplied after the word “ and,” in the third and fourth paragraphs of the will, so that she took under it a legacy for $1,800 and one sixth of the residue, free from any trust in Louis Schinz. If it can be said that any trust was intended, the will does not state its terms, and it would be but a mere naked, passive-trust, which would be valid as to personal estate, and as to real estate would be executed as a legal estate in her favor by force of the statute. Secs. 2071, 2075, R. S. In either [244]*244event, the judgment of the county court directing payment of these legacies to Barbara Schinz was correct. The general legacy of $1,800 given by the third clause of the will, and the legacy of one sixth of the “ rest, residue, and remainder ” of the estate, under the fourth clause, to Louis Schinz as trustee of the testator’s son John Zentner, are the only legacies referred to in the fifth clause of the will as give to Louis Sehhnz as trustee, and they are given to him for John Zentner upon the active trusts specified in that clause of the will.
2. The judgment in respect to the bequests in trust for John Zentner does not deviate in the least from the plain and unmistakable language of the will, but recites it. John Zentr tier did not predecease the testator, and if' he shall leave, when his death occurs, any child or children surviving him, then his interest or his share is to be paid to such child or children, and when the youngest arrives at full age the principal is to be divided equally between them. As John Zeni-ner is still living, it cannot be known whether he will die without leaving children. The question whether the time of his death without leaving children, upon which event the principal sum given in trust for him is given to the other children of the testator, refers only to his death before that of the testator, or after (Washbon v. Cope, 144 N. Y. 281), is not involved in the case, for there was no one before the court in, any position to assert or resist any claim, under either view of that question. The judgment will not, therefore, be conclusive either way,. when the question occurs and becomes a practical and material one with proper claimants before the court. Until then the question is a speculative one merely, upon which no binding judgment could properly be given.
3. The testator did not give any general legacy to his daughter Maria Schinz, but left to his son Fredolin, in trust for her, “ one sixth of the rest, residue, and remainder ” of [245]*245bis estate, after providing for bis wife and tbe payment of tbe several legacies for $1,800 each. He did not give ber any general legacy for $1,800 or any other sum. By the codicil to his will, made about three years afterwards, the testator, after reciting the bequest in trust for his daughter Maria, in terms as above quoted, revokes it, and “ instead thereof ” gives and bequeaths to her “ in her own right the said one-sixth of the rest, residue, and remainder of the estate which shall remain after the death ” of his wife, Barbara Zentner. It is contended that by the codicil Maria Schinz is entitled to one sixth of the corpus of the estate before payment of the several general legacies for $1,800 each, and debts and expenses of administration. "We think that the only effect of the codicil is to turn the trust estate in favor of Maria Schinz, under the will, into a legal one, and not to increase her legacy in any amount. Her share in the resichue under the original will is expressly referred to, and the bequest in the codicil is to be in her own right and the said one-sixth of the rest, residue, and remainder of his estate, which clearly refers back to the fourth or residuary clause of the will, although there are added the words, “ which shall remain after the death of my wife.” No part of the corpus of his estate was devised to bis wife. She took only such part of the income after his death as she might require, and there could, properly speaking, be no “ rest, residue, and re-, mainder ” of the estate until the general legacies and debts and expenses of administration were paid. The evident purpose of the codicil was to leave the rights of Maria Schinz under the will in the same plight and condition as if no trust provision of the legacy in her favor had been originally incorporated in the will.
Eor these reasons we are of the opinion that no reversible error occurred in that part of the judgment construing the testator’s will.
4. The executor, as such, took the legal title to'the entire [246]*246estate, it consisting of personal estate, for tbe purposes of administration. Tbe rights of tbe widow under tbe will extended only to sucb portion of tbe income of tbe estate as might be required for her own use, and tbe rest, if any, was to be added to tbe principal. Tbe executor was entitled to bold tbe estate upon tbe trusts implied by law from tbe will (Ford v. Ford, 70 Wis. 19) to collect and pay over sucb income from time to time to tbe widow during her life, and to hold tbe bequests in favor of John Zentner upon tbe express trusts specified in tbe will. These trust duties would continue for tbe contemplated period, although bis duties as executor might be sooner terminated. He would, however, continue to bold tbe estate as executor until be should qualify as testamentary trustee, and as it does not appear that be bad so qualified, be held tbe estate by bis title as executor until be settled bis final account. R. S. sec. 4025; Newcomb v. Williams, 9 Met. 525, 534. It appears that tbe widow died in January, 1891, and on tbe 31st of that month tbe executor filed bis final account for settlement. Until after tbe death of tbe widow there could be no judgment of distribution, and in tbe meantime tbe estate would necessarily remain in tbe bands of tbe respondent, to be managed and cared for by him, either as executor or as testámentary trustee; and, in any event, at tbe reasonable cost and expense of tbe estate.
5. There was a trial upon issues made up in tbe county court pursuant to its rules in respect to certain portions of the respondent’s final account relating to certain expenses of administration, investment, and management of tbe estate alleged to be illegal and excessive, namely, an allowance to tbe respondent for attorney’s fees and extra compensation claimed by him in addition to statutory commissions and per diem, with tbe result set out in tbe foregoing statement. Tbe record shows that the-respondent was examined in open court, and that tbe court beard tbe allegations and all the [247]*247evidence. The appellants appealed to the circuit court. The statute (sec. 4034, R. S.) provides that on such appeals “ the court shall proceed to trial and determination of the matter according to the rules of law, allowing a trial by jury of all questions of fact in cases where such trial may be proper; and such court may direct an issue to be made up between the parties in a brief form, when it shall be deemed necessary.” The judgment recites that evidence was heard. The so-called bill of exceptions, which does not contain any exception whatever or any evidence, states that “no testimony, oral or documentary,” was introduced, “ but the action was heard and decided upon the records in said action by consent of all parties.” ÜSTo objection or exception appears to have been taken to anything that occurred at the trial. The record is in no condition to admit of any review of many of the questions argued here. It is no part of our duty to look through all the details of evidence, and examine volu-minous documents and accounts, after the manner of courts of original jurisdiction. We can consider only matters pointed out by exceptions, or defects or points appearing upon the face of the record proper. The presumption is in havor of the correctness of the judgment appealed from.
6. It appears upon the face of the judgment of the county court that there had been a settlement of the respondent’s account up to March 4, 1888, upon notice, at which one of the appellants was represented by a trustee and the other by her attorneys, who withdrew opposition to the account. It included $2,377.08 for extra compensation, besides $565.56 for -commissions. The appellants now claim that this settlement was not final and conclusive upon the matters embraced in it, and that on the hearing of the final account in the county court and in the circuit court they had a right to overhaul that account and contest, as of course, any of the items embraced in it. There is nothing in the record to ¡show that they were denied the right to do so. We have [248]*248no doubt of the right of the county court to settle and allow an executor’s or administrator’s account at any time before the rendition of his final account, upon notice as provided in the statute (R. S. sec. 3931), and that when thus settled and allowed it will be final and conclusive as to all matters embraced in it, and can be impeached or re-opened only for fraud or mistake. Woerner, Adm’n, §§ 504, 505, and cases, in notes. In Massachusetts it is provided by statute that upon every settlement of an account by an executor or administrator his former accounts may be so far opened as to-correct any mistake or error therein, excepting that any matter in dispute between two parties, which had been formerly heard and determined by the court, should not be again brought in question without leave of the court. In Wiggin v. Swett, 6 Met. 198, Shaw, C. J., said, “ The law was substantially the same before the Revised Statutes.” The-court is cautious to exercise such a power in regard to a subject thus controverted and judicially settled. Stetson v. Bass, 9 Pick. 27. See, also, Gale v. Nickerson, 144 Mass. 417; Appeal of Fross, 105 Pa. St. 258, 268; Rhoads’s Appeal, 39 Pa. St. 186; Shindel's Appeal, 57 Pa. St. 43; In re Fisher’s Estate, 15 Wis. 511. The allowance of the account up to-March 4, 1888, for executor’s services, may have been erroneous as having been made contrary to sec. 6, rule XVII, of’ the county court rules, but it is none the less conclusive. It., cannot now be avoided for mere error in practice.
7. The statute (R. S. sec. 3929) provides that, in addition-to the per diem and commission, the executor shall be allowed' as compensation such further sums, “in cases of unusual difficulty or extraordinary services, as the court shall deem reasonable.” The various lengthy accounts of the executor,., and schedules annexed, show the collection, management, loaning and reloaning on mortgage security of the moneys-of the estate from time to time for a period of over seven-years, by which the estate has been increased from $32,586.73' [249]*249in tbe beginning, so that there remained, after satisfying-the provision for the widow and all debts and expenses of administration, the sum of $48,764.80 for distribution. These-services may be fairly considered to be extraordinary and. of a very valuable character. The extra compensation does not appear to exceed the amount allowed the respondent by the testator for substantially the same services rendered for him in his lifetime. The estate appears to have been managed with great skill and prudence, and the respondent deserves credit for his successful conduct of its affairs. The-statute contemplates that the court shall exercise its sound discretion on the matter of extra compensation. The question is, “ What does the court, in view of the evidence and its own knowledge of the facts, judge reasonable ? ” Ford v. Ford, 88 Wis. 131. The record is in no condition to enable us to say that the allowance was not reasonable in amount.
8. It is urged that no extra compensation should have-been allowed, unless the same was set up as a claim in the statement of such final account as required by sec. 2, rule XVII, County Court Rules. This is a matter of practice- and does not go to the power of the court, and, had objection been made, it is fair to presume that the rule would have been enforced. Upon the trial of the appeal from the allowance of the executor’s account, in which the legality and reasonableness of the amount was in issue, the parties do not appear to have raised this objection, but consented that the action should be heard and decided upon the record. The objection which the appellants seek to make is not open to them on this appeal. The court might properly, under these circumstances, act upon the evidence agreed on and its-own knowledge in making the allowance. We perceive-nothing in the record to doubt the propriety of the allowance for attorney’s fees. The errors or defects in the pleadings and proceedings, relied on, founded on a noncompliance-with the rules of practice, do not appear to have prejudiced [250]*250the rights of the appellants, and under the statute (R. S. .sec. 2829) furnish no ground for the reversal of the judgment appealed from.
There is no reversible error in the record.
By the Court.— The judgment of the circuit court on both appeals is affirmed, and the cause is remanded to the county -court of Winnebago county for further proceedings according to law.
On June 20, 1895, upon motion of the appellants, the judgment of this court was modified so as to provide that the taxable costs of both parties be taxed against and paid out of the estate of Fredolin Zentner, Sr., but one case and one set of briefs on each side to be taxed.