Hrdlicka v. Fish

The following opinion was filed March 4, 1930:

Owen, J.

The question here presented arises from the fact that the testatrix disposed of practically her entire'estate in the form of specific devises and bequests, leaving an insufficient residue out of which to pay the debts and expenses. The husband insists that no part of the estate the income from which was bequeathed to him should be used for that purpose.

By sec. 312.03, Stats., it is provided that the personal estate of the deceased is to be first used for the payment of the debts and expenses. If the personal estate be not sufficient, then resort may be had to the real estate. By sec. 313.28 the estate, real and personal, willed to any devisee or legatee is subjected to the payment of such debts and expenses when necessary for that purpose in proportion to the amount of the several devises or legacies, “except that specific devises and legacies, and the persons to whom they shall be made, may be exempted if there shall be other sufficient estate and it shall appear to the court necessary in order to carry into effect the intention of the testator.”

The lower court held that it was apparent from the face of the will that the testator intended to bequeath to her husband, Luie Fish, one half of all income therein mentioned accruing after the death of the testatrix, and that in order to carry out the intention of the testatrix no part of the property giving rise to the income so bequeathed should be used for the payment of debts. It appears from the opinion filed that the rule announced in Will of Leitsch, 185 Wis. 257, 201 N. W. 284, to the effect "that income accruing from a trust estate intermediate the death of the testator and the vesting of the estate in the trustees belongs to the life tenant and not to the corpus of the estate, especially when no other disposition of such income is made,” materially influenced the conclusion reached. It is not perceived how the rule of that case has any application here. That rule defines the, rights of life tenant and remainderman. No such relation is created by the terms of this will. Neither is there any trust created except that resulting from the duty of the daughter to collect the income and to pay one half of the net proceeds thereof to the husband. In determining the question whether the intention of the testatrix will be defeated by subjecting the property from which income arises to the payment of debts, the rule of Will of Leitsch relied upon by the trial court affords us no assistance.

From the terms of the will it plainly appears that the daughter was the recipient of her mother’s major bounty. This was in accordance with natural instincts. While it does not appear how long she and Luie Fish had been married, it does appear that he was her second husband, and there is an entire failure of any proof to indicate that he contributed to the accumulation of her estate. While she gave one half of certain incomes to her husband, she just as definitely gave the other half to her daughter. A consideration of the will reveals no intent on the part of the testatrix to prefer the husband so far as participation in this income is concerned. On the other hand, it is fairly apparent that she intended the daughter to have the major portion of the estate and that she recognized the claims of the daughter upon her bounty as paramount to those of her husband. We find it stated in the brief for the husband that the bequest to him amounted to jus.t a little more than one fourth of.the estate. It is said that the debts and expenses amount to about $3,400. It is apparent that, if debts are paid exclusively out of bequests to the daughter, her portion of the estate will be seriously diminished, and it seems more probable that the intention of the testatrix would be defeated by such an appropriation than by subjecting all legacies to the payment of the debts in the proportion defined by the statutes.

It is quite apparent that the testatrix overlooked the fact that the specific devises and bequests made by her will did not leave a sufficient residue out of which to pay debts. This fact gives rise to a contingency which she did not have in mind at the time she made the will. Under such circumstances the statute provides that the specific legacies shall be subject to the payment of debts unless it appears that the intention of the testator would thereby be frustrated. As we can discover no intention on the part of the testatrix to prefer her husband over her daughter, or to accord to his bequests a greater sanctity or immunity than attach to the legacies to the daughter, the commands of the statute should be followed in appropriating the various parts of this estate for the payment of debts.

By the Court. — Order reversed, and cause remanded for further proceedings in accordance with this opinion.