Paine v. Shero , 192 Wis. 333 ( 1927 )

Vinje, C. J.

It is clear that unless a trust was created the legacy to his wife lapsed because she predeceased him. Will of Griffiths, 172 Wis. 630, 179 N. W. 768. Did the will create a trust? In cases of doubt courts lean to the rule of descent (1 Page, Wills, 2d ed., § 817), and in order to create a trust the intention of the testator must be manifest and mandatory. 28 Ruling Case Law, 243.

Testator was a lawyer of experience and ability; was about sixty-five years old at the time of the execution of the will; had suffered a paralytic stroke and was in poor health, but mentally competent to make a will. His wife was in fair health and about sixty-one years old. It is probable that he expected her to survive him, but being a lawyer he no doubt took into account the contingency that she might not.

Our court has a number of times dealt with the subject of the creation of a trust by precatory language in a will. Thus in Knox v. Knox, 59 Wis. 172, 18 N. W. 155, it was held, that the words “having full confidence in my said wife and hereby request” that at her death she will divide, etc., created a trust. In Swarthout v. Swarthout, 111 Wis. 102, 86 N. W. 558, the language, “It is my wish” that certain property mentioned devised to his wife should go to the children at her decease, was held to create a trust. The same ruling was made in Will of Olson, 165 Wis. 409, 162 N. W. 429.

The words “well knowing” used in the will of testator have not, so far as we can discover, been passed upon by our court, but they have been considered in other jurisdictions and have been held equivalent to mandatory directions. Briggs v. Penny, 49 Eng. Ch. 422; Bardswell v. Bardswell, 9 Sim. 319; 1 Perry, Trusts (6th ed.) § 112; 1 Lewin, Trusts, 130. Likewise the following words have been held to be mandatory: “In the full faith,” Noe v. Kern, 93 Mo. 367, 6 S. W. 239; “Feeling assured and having every confidence,” Gully v. Cregoe, 24 Beav. 185; “under the firm conviction,” Barnes v. Grant, 26 L. J. Ch. n. s. 92; “in the fullest confidence,” Wright v. Atkyns, 17 Ves. 255; Curnick v. Tucker, L. R. 17 Eq. 320. It will thus' be seen that there is good authority for holding that the words “well knowing,” used in the fifth clause of the will, are sufficient to create a trust. That they were intended to do so becomes quite certain when we take into consideration the language used in the fourth clause where the testator, speaking of his daughter Kate, states, “the reason I leave her nothing else” (than the silver spoons) “in this my last will and testament is” because of her share in an insurance policy. It is true that mere negative words of exclusion do not debar an heir from taking intestate property (1 Page, Wills, 2d ed., §818; Matter of Trevor, 239 N. Y. 6, 145 N. E. 66); but the language quoted, coming from an able lawyer, shows that he intended to create a trust, because if he did not, and his wife predeceased him, he would leave intestate property that would descend to all his children and Kate would then receive more than he says in his will that he leaves her. If a trust is created the language in paragraph four is true. If no trust is created it may not be true.- We must assume he intended to state that which would correspond to his intention no matter what contingencies arose. Our conclusion is that the trial court properly construed the will as creating a trust in favor of our children.

That by the words our children the testator meant only the children by the second marriage is made quite clear by the language of the fourth paragraph. Kate was intended to be excluded by the words “our children” because if not excluded she would share equally in the trust estate. This the testator intended she should not do when he left her only the silver spoons. While the negative language used by the testator is not held to debar Kate from taking, it is considered very significant as to whether or not a trust was created and as to what he meant by the words “our children.” We think the whole will as written clearly indicates that the trial court reached the correct conclusion, and therefore we refrain from adverting to the financial conditions of the children as tending to sustain such conclusion.

By the Court. — Judgment affirmed.