Will of Reynolds , 151 Wis. 375 ( 1912 )

SiebeceeR, J.

The controversy presents the question: What disposition was made by the testator of the thirty per cent, of the residue of the testator’s estate which by the provisions of the will he bequeathed to the widow ? The widow renounced this bequest by electing to take the provision made for her by law. The appellants contend that the effect of the widow’s election is that tbe portion of tbe' estate so bequeathed to her becomes undisposed-of property, and passes to the testator’s adopted daughter as bis heir at law; while the respondents assert that the provisions of the will show that the testator intended this portion of his estate to be a part of the residuum specified in the will, and that it passes to those persons whom he designated as residuary legatees. The trial court held that the portion of the residue bequeathed to the widow remained part of the residuum and passed to the residuary legatees after the widow dropped out of this class. The controlling inquiry is: What disposition did the testator make of this portion of his estate? It is urged that by his will he specifically limited this bequest to his widow and that by her renunciation thereof there is a failure of disposition of it, and hence that it devolves as intestate property. If the testator intended that the residuary legatees, other than his widow, should receive the residuum, including the part she was to take under the will, that solves the inquiry and fixes the disposition thereof. We are of opinion that it is manifest from the provisions of the will that the testator intended that the residue of his estate, as fixed by his will, should go to the residuary legatees generally, without restriction of a particular part thereof to each one. Approaching the situation as the testator did, it is clear that he considered the persons who were to be the objects of bis bounty under three classes, namely, those upon whom he intended to bestow specific bequests, then his widow, and finally the class which was to receive the residuum; and he parceled out his estate with this in view. It also appears that it was his definite purpose and object that no part of his estate, except a small portion of the residuum, should go to his adopted daughter, and that no part of his estate should devolve as intestate estate. The scheme of intrusting and bequeathing the residue of the estate to the three selected trustees, who were to hold the property for ten years and then distribute it as directed, is persuasive evidence of bis intent that tbe residuum was to belong generally to those whom he selected as residuary legatees, and to that -end he invested the trustees with extensive powers of management and control over the same, with directions to hold the accumulations thereof for ten years, after converting all of the residue into money, “for the purpose of . . . distributing the residue as hereinafter provided,” among his beneficiaries. It is significant that in dealing with the residue the testator treated it throughout as a separate quantum of his estate, which should be held for a period of years for the purpose of distributing it among the residuary legatees, and that this scheme appealed to him as the best legal means for gathering and holding this residuary estate for those whom he designated as its beneficiaries. The fact that the widow renounced the benefits he conferred upon her as a residuary legatee does not disturb the will of Mr. Reynolds except in the particular provision intended for her, and cannot operate to defeat the intended disposition of his other, property, unless her renunciation necessarily interferes therewith. Appellants lay much stress on the case of In re Bradley’s Will, 123 Wis. 186, 101 N. W. 393, as applicable to and controlling the instant case. The principal question there considered was how to ascertain the residue of the testator’s estate; his wife, to whom was bequeathed a part thereof, having predeceased him, and his second wife, who survived, having demanded the one-third of his estate to which she was entitled under the law. This court there held that, under such circumstances and under the provisions of the will, the testator used the word “residue” in the sense in which it is commonly employed, and that the “residue” of the testator’s estate, under these conditions, consisted of the part that remained of the general estate after deducting the debts and the widow’s legal share. This rule for ascertaining the “residue” is to ]se applied here, but the case in no way aids us to ascertain what disposition Mr. Reynolds made of the residue of his estate by the provisions of his will. That intention must he gathered from the four comers of the instrument under the facts and circumstances surrounding him. We are persuaded that he intended that the whole of the residuum of his estate should go to the residuary legatees, and that no part thereof should under any circumstances become intestate property. While the widow’s renunciation may affect the quantity of the residue, it cannot affect his disposition thereof, and it must be held by the trustees for the purpose of distributing the same among the beneficiaries he designated, that is, the residuary legatees after the widow dropped out.

In view of this disposition of the property under the will, it must follow that the stipulation of the parties for a distribution of the estate contrary thereto must be disregarded, and that the executors and trustees must carry out and execute the will in accordance with its terms. Will of Dardis, 135 Wis. 457, 115 N. W. 332; Will of Rice: Cowie v. Strollmeyer, 150 Wis. 401, 136 N. W. 956.

The trial court held as a conclusion of law that the residuary legatees under the will did not take a vested estate in the property constituting the residue and held in trust for their benefit, and that their interests would not become vested until the period of the trust expired and the time for distribution arrived. The will gives the property to the residuary legatees, subject to the trust for the period of ten years, free from conditions or contingencies which might defeat the gift or terminate their right thereto when the trust expired. As declared in Ohse v. Miller, 137 Wis. 474, 119 N. W. 93:

“The gift will be held to vest, if such appears to have been the testator’s intention, even though it be expressed in a mere direction to pay. . . . The real inquiry is whether the element of time is annexed to the gift itself as a condition precedent or merely to the payment of it.” ■

It is obvious from the context of the will that the testator intended by the words used to make a present grant and to postpone the distribution thereof to the time when the trust expires. Williams v. Williams, 135 Wis. 60, 115 N. W. 342; Will of Prasser, 140 Wis. 92, 121 N. W. 643.

There is no reversible error in the record.

By the Court.- — The judgment appealed from is affirmed.

A motion for a judgment for costs, including a reasonable sum for attorneys’ fees, to be paid out of the estate, in favor of the Milwaukee Protestant Home for the Aged and against the executors, was denied January 28, 1913.