Rose v. Ruggles , 137 Wis. 439 ( 1909 )

Dodge, J.

There is usually little gain from discussion of different theories of construction of language used in a will. We have carefully studied tbe provisions of this will, separately and in their contest and correlation with each other, and are persuaded that tbe intention of tbe testator was correctly apprehended and executed by the judgment of the-county court. Certain considerations leading to and confirming that view may be briefly stated: The bequest to tbe trustees was of money and property belonging to tbe deceased at bis death. Any advancements were not such property.' They did not belong to tbe testator at tbe time of bis death. They could not come to tbe trustees. Tbe duties imposed upon tbe trustees with, reference, to the property coming to them under the bequest were such, as to be consistent only with actual property which could be sold, converted into interest-bearing securities, and, in the words of the will, paid •over, all of which tend to negative a mental conception in the testator of an estate made up of property and of advancements which could not be so handled and disposed of by trustees. We think the conception and intent plain merely to direct such method of computation as that the proportioning ■of the actual property held by the trustees between the children should give to the one receiving less advances a proportionate superiority over the other child. While the will directs that for purposes of such apportionment the advances should be deemed a portion of the estate, it nowhere declares that they should be deemed a portion of the share of the bene■ficiary, or that they should be taken in. payment pro tanto upon such share, but commands that they should be deducted ■from the aliquot portion of the estate attributable to the ad-vancee upon computation as above described. Had such conception or purpose as is effectuated by the judgment of the circuit court existed, nothing was easier than to express it in words identical with or similar to those used in sec. 3956, Stats. (1898), where it is declared that'the advancement “shall be considered as a part of the estate . . . and shall be taken by such child or other descendant toward his share of the estate of the intestate.” The will under consideration is ■couched in apt and legal phrases throughout, evidently prepared by a trained lawyer with much clearness and accuracy ■of expression. When such a writer directs that, after dividing the estate, including advancements, into halves, the amount of the advancement shall be deducted from one of the halves, there is strong presumption that he meant a different result from that which would be expressed by the phrase “shall be taken by the beneficiary toward her share.” We think the words used aptly express the intention that, as preliminary to the action of the trustees, the one-half of the estate attributable to appellant should be ascertained by dividing the estate plus the advancement by two, one half for each child, and that the amount of advancement to her should be-deducted from the same one-half share, and the remainder pass to the trustees to be managed and divided by them in the proportions prescribed by the will.

By the Court. — Judgment of the circuit court is reversed, and cause remanded with directions to affirm the judgment, of the county court.