#### Davis, Appellant, vs. Davis and another, Respondents.

*March 23*

May *21, 1907.*

*Wills: Construction: Costs: Discretion: Appeal: Costs payable from estate.*

1. By the terms of a will a trust was created in the residue of testator’s estate and it was directed that the net income thereof be paid to his widow and his two sons in equal parts during the life of each. Item 11 of the will then directed that in the event of the death of a son leaving a widow and children one third of the proportion of said income to which said son would be entitled if living should be paid to his widow while she remained unmarried, and the remaining two thirds should go to his children; and that in the event of the death of a son leaving a widow and no issue the widow should receive during the time she remained unmarried the income which her husband would have been entitled to had he lived. A codicil provided that on the death of either of the sons “one third of that portion of the income of the trust estate” which by the will was directed to he paid to him during his life should be paid to his widow “during her natural life, instead of while she shall remain unmarried, as was directed in item No. 11 of said will.” *Held,*that the widow of a son dying without issue was entitled to one ninth only of the income of the trust estate during her life.

2. In a proceeding commenced by trustees for construction of a will, costs in the circuit court are *held*to have been properly allowed, under the discretion given by sec. 2918, Stats. (1898), in favor of certain legatees, as the successful parties against another legatee who contended for a different construction.

3. The appeal from a judgment construing a will having been taken in good faith, and the questions presented being worthy of consideration, the costs awarded to respondents on affirmance are directed to be paid out of the estate.

Appeal from a judgment of tbe circuit court for La Crosse county: Chbstbe A. Eowlee, Judge.

*Affirmed.*

Tbe trustees of tbe estate of Aaron IT. Davis, deceased, petitioned tbe court for tbe construction of tbe will of tbe deceased. It appears that tbe deceased died, leaving a will with a codicil; that probate thereof bad been duly granted Septem*55ber 3,1889; and that petitioners were the duly appointed and acting trustees to administer the trust created by the will. Under the' terms of the will the residue of the estate, after making provision for some specific bequests and charges, was given in trust with directions to carry out the provisions of the will respecting such residue. In effect it was provided that the trustees were to receive the rents, profits, and income .thereof and accumulate them up to March 24, 1906, to care for and manage such estate after payment of “all taxes, assessments, and insurance, and to make and pay for all necessary repairs on the homestead premises,” given to testator’s wife, “or such real estate as she shall have under the provisions of this will for her homestead.” The will then provided:

“(9) To pay to my wife quarter-yearly from the date of my death, one third of the net income remaining of all said trust property and estate during her natural life.

“ (10) To invest and accumulate the balance of said net income year after year until the 24th day of March, 1906, when said accumulated income shall be added to and become .part and parcel of said trust fund and estate, and after which time the net income of all said trust estate not herein directed to be paid to my said wife, and for taxes, assessments, insurance, and repairs on her homestead, shall be paid in equal portions, quarter-yearly, to my said sons during their natural lives.

“(11) On the death of either of my sons the proportion of said income which he is entitled to receive during life shall be paid, quarter-yearly, to his wife and children as follows: One third to his widow while she shall remain unmarried, and so much as is not paid to his widow shall be paid to the guardian of his children for their education and maintenance, provided if either of my said sons leave him surviving a widow and no issue, then such widow shall receive, while she remains his widow and unmarried, the proportion of said trust estate which her husband would have been entitled to had he lived.

“(12) In case either of my sons shall die without issue, then the proportion of said income herein directed to be paid to his issue and his widow shall be paid to the surviving son *56and bis issue, quarter-yearly during tbeir natural lives, subject to tbe provisions for payment to the widow of a deceased .son during widowhood, and the further provisions of this will.”

The codicil to the will was as follows:

“Be it remembered that I, Aaron H. Davis, of the city and county of La Crosse and state of Wisconsin, do make this my codicil, hereby confirming my last will made on the 15th day of March, A. D. 1886, so far as this codicil is consistent therewith, and do hereby will and direct that on the death of either of my said sons named in said will, one third of that portion of the income of the trust estate and property created in and by said will which is therein, in item No. 10 of said will, on page 3 of the same, directed to be paid to'him during his natural life, subsequent to the 24th day of March, A. D. 1906, shall on his death be paid to his widow quarter-yearly during ¡her natural life, instead of while she shall remain unmarried, as was directed in item No. 11 of said will, on page 3 of the same. And said will is modified as herein stated, and in no other respect.”

The testator left surviving him a widow and two sons. The widow and one son, *William*(?., remain unmarried. The son *William*(?. has no children or issue. The other son, Walter £>., is now deceased. He left surviving him his widow, *Elizabeth S.j,*but no children or issue. The circuit court adjudged that' the testator’s widow, *Mary E.*Davis, was entitled to one third of the net income of the trust estate during her natural life; that *Elizabeth 8.*Davis, widow of testator’s son Walter S., was entitled to one ninth of the net income of the trust estate from March 24, 1906, during her natural life; and that testator’s son *William Q.*was entitled to five ninths of the net income of the trust estate from March 24, 1906, during his natural life. This is an appeal by *Elizabeth 8. Davis*from the judgment of the circuit court so construing the will and codicil.

For the appellant there was a brief by *Higbee &*Higbee, and oral argument by *E. C. Higbee.*

*57*Benjamin F. Bryant*and *George II. Gordonr*fo-r tbe respondents.

Tbe following opinion was filed April 9, 1907:

Siebecker, J.

Erom tbe provisions of tbe will, above stated, it is clear that testator created a trust estate of tbe residue of bis estate, disposed of tbe net income thereof, and directed that sucb income should be received by bis widow and bis two sons in equal parts during tbe life of each. Tbe uncertainty arises as to tbe disposition made of this income in case of tbe death of either or both sons. Tbe provisions of tbe will as they stood before tbe codicil was executed are plainly to the effect that, in tbe event of tbe death of a son leaving a widow and children, one third of sucb net income which sucb deceased son was entitled to if living was to be paid to bis widow while she remained unmarried, and tbe remaining two thirds to tbe son’s children, with directions to apply it for their education and maintenance. In tbe event that sucb son left no children, then bis widow was to receive during tbe time she remained unmarried tbe income which tbe son would have bad. Tbe testator, however, changed tbe provisions disposing of tbe net income of a deceased son by a codicil, set out in full in tbe foregoing statement. Tbe meaning and effect of this codicil and tbe changes it makes in tbe provisions of tbe will are tbe questions presented.

Tbe phraseology of tbe codicil is somewhat involved and ambiguous, but an analysis of tbe different parts indicates that tbe testator intended to make provision for a deceased son’s widow different from what be bad provided in tbe will. Tbe codicil, after expressing confirmation of tbe will, directs:

> “That on tbe death of either of my said sons named in said will, one third of that portion of tbe income of tbe trust estate and property created in and by said will which is therein, in item No. 10 of said will, on page 3 of the same, directed to be paid to him during bis natural life, subsequent to tbe 24th day of March, A. D. 1906, shall on bis death be paid to bis *58widow quarter-yearly during her natural life, instead of while she shall remain unmarried, as was directed in item No. 11 of said will, on page 3 of the same.”

Taking the operative clauses of this codicil it is manifest that the testator undertook to make no changes other than in the provision for a son’s widow. From the context of the provision and the significance of the words employed it is reasonably plain that the provision made for such widow in the codicil was to be in place of whatever provision had been made for her in the will. Two points in making such provision are a specification of the part the widow should receive of the net income which the deceased son would have received had he lived, and the fixing of the period during which she should receive it. As to the first the codicil declares that “one third of that portion of the income,” to which a son was entitled while living, “shall be paid to his widow.” This is in itself a clear and definite determination of the share she is to have. This is followed by a direction as to when it shall be paid, and for what period, in these words: “quarter-yearly during her natural life.” If testator had not followed this clause by the words, “instead of while she shall remain unmarried, as was directed in item No. 11 of said will,” no uncertainty or ambiguity as to his intention could be said to exist. The provision as to the amount given to the widow for the period of her natural life, standing alone, is clear, if taken in its ordinary significance, freed from the succeeding clause. The insertion of the phrase “instead of while she shall remain unmarried” is explicable, however, upon the ground that the testator thereby laid stress upon the change he intended to make in the period during which she was to have this share of the net income, and he therefore specifically used the words, “as was directed in item No. 11- of said will.” In this item of the will we find that he had fixed and limited whatever the son’s widow received of the net income to the period during which she remained unmarried. This condition of the will *59be evidently wanted to annul specifically, and thus referred to it in this manner by fixing tbe period during wbicb sbe was to receive one third of tbe son’s income of tbe trust estate, tbougb be bad accomplished tbe same result by limiting it in tbe preceding clause to tbe period of her natural life. It appears quite directly that- this clause was added by tbe testator to emphasize his intention of providing for a son’s widow for her life in tbe amount specified. This intention becomes more evident when tbe consequences flowing from tbe construction contended for by appellant are considered. If her claim that sbe, as a son’s widow, is entitled to tbe income her husband received during bis life, be sustained, it would result that, if such son left children, they would receive nothing of the income during tbe life of such son’s widow. Tbe whole tenor of tbe will and codicil seem opposed to such a result. We are of opinion that the circuit court held correctly that tbe son’s widow was entitled to one ninth of tbe net income of tbe trust estate during life, and that testator’s living-son was entitled to five ninths thereof.

Appellant urges that tbe court erred in awarding respondents recovery of their costs against her. Nothing is submitted showing why appellant should be released from such liability, if tbe trial court in its proper discretion, under sec. 2918, Stats. (1898), awarded such recovery to them as tbe successful parties in tbe litigation. We find no grounds for reversal of tbe trial court’s action in awarding respondents their costs and disbursements. *In re Donges’s*Estate, 103 Wis. 497, 79 N. W. 786.

*By the Court.*— Judgment affirmed.

Upon a motion for a rehearing counsel for tbe appellant contended, *inter*alia, that tbe award of costs against her in tbe circuit court cannot be justified. Tbe petition for construction of tbe will was presented by tbe trustees to tbe county court under cb. 163, Laws of 1905. Tbe appellant *60Rere took no more part in tke proceedings in tke county court tkan any otker legatee. Tke county court rendered judgment construing tke mil, from wkick ske took no appeal; but *William G. Davis*did appeal to tke circuit court, and tke circuit court pronounced a different judgment as to tke proper construction of tke will tkan kad been pronounced by tke county court. In *In re Donges’s*Estate, 103 Wis. 497, tke situation was entirely different, and tke decision in tkat case offers no autkority wkatever for tke taxation of costs against tke appellant in tkis case.

Tke motion for a rekearing was denied May 21, 1907, but • tke mandate of tkis court was amended, tke following opinion being filed:

Siebeckeb, J.

We are persuaded tkat tke decision affirming tke judgment of tke circuit court as to costs against appellant is correct. But tke appeal to tkis court was unquestionably taken in good faitk and tke questions presented were worthy of consideration by tkis court, and therefore respondents’ costs should be directed to be paid out of tke estate, *Jones v.*Roberts, 96 Wis. 427, 70 N. W. 685, 71 N. W. 883. It is therefore

*By the Court-.*— Ordered tkat tke judgment and mandate of tkis court be amended so as to direct tkat tke judgment is affirmed, with costs to be taxed and paid out of tke estate.

Cassoday, O. J., took no part.