#### Will of Ruggles: Rose, Appellant, vs. Ruggles, Trustee, Respondent.

*December 18, 1908*—

January *5, 1909.*

*Wills: Construction: Advancements.*

Testator gave to trustees the residue of Bis estate to Be divided into as many equal shares or portions as he had children (there were two), and directed that there should he paid to a daughter, within one year after the prohate of his will, one fourth of her share, and otherwise directed as to the disposition of the. residue of her share. The will also provided that any advancements to his children “shall he added to and deemed a part of my estate in this will bequeathed and devised in- trust,” and' that “in the division of said estate into shares, as hereinbefore provided, the [advancements] shall he deducted from the share of the child or children against whom such charges or charge shall he made.” *Held:*

(1) The bequest to the trustees being of money and property belonging to the deceased at the time of his death, advance-*440meats made by tlie testator did not come to the trustees, since such advancements were not such property as belonged to the testator at the time of his death.

(2) The conception and intent of the language of the will was 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. '

(3) The words used aptly expressed an intention that, as preliminary to the action of the trustees, the one-half of the estate attributable to the daughter should be ascertained by dividing the estate plus the advancement by two, one half for each child, and that the amount of the 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.

Timlin, J., dissents.

Appeal from a judgment of tbe circuit court for Eond du Lao county: Chester A. Eowler, Circuit Judge.

*Reversed.*

Petition by tbe executor for construction of certain clauses in the will of Augustus G-. Ruggles, deceased. Tbe will, after making several bequests, provided by its fifth paragraph as follows:

*“I*give, bequeath and devise unto said George D. Ruggles, James B. Perry and said Anna Ruggles Peck, and the survivors and survivor of them and their successors, all the rest, residue and remainder of my property, whether real, personal or mixed, and wherever situated, in trust, nevertheless, to and for the uses and purposes following, that is to say: To convert the same into money, stocks or other securities, •■and divide them into as many equal shares or portions as there shall be living of children born to me, including any child or children begotten by me and bom after my decease, to be held in trust by them, one share for each such child, and dispose of them as follows, to wit: Pay to my daughter *Gertrude Golden Ruggles*Rose, within one year after the proof and allowance of this my will, or as soon thereafter as practicable, one fourth of her share or portion, retaining the residue thereof, and investing and keeping invested the same in such manner as to them, the survivors and survivor of them *441.and their successors shall best seem, and pay to my said ■daughter the interest and income derived therefrom until she shall attain the age of fifty years, if she shall live so long, at which time they shall pay to her one third of said residue, retaining the remaining two thirds of such residue, and pay to her during her natural life all interest and income derived 'therefrom quarterly, or as near'quarterly as practicable; and from and after her death, without issue her surviving, such • residue to go to my heirs at law who may be living at that time; provided that if my said daughter shall survive her husband, H. PL Rose, my said trustees are hereby authorized and empowered to pay to her, should she desire, as soon after the death of said'PL H. Rose'as practicable, one half of said two-thirds residue, and the income of the remaining one half thereof during her natural life, the principal of which after her death, without issue her surviving, shall go to my heirs at law then living. To invest and keep invested the share or portion set apart for my son *Augustus G.*Buggies, and during his minority, pay over to his guardian from time to time as said guardian may require, the -income derived therefrom, and said guardian is hereby authorized and requested to use the same, or so much thereof as in his judgment may be necessary for the support, maintenance and education of my said son until he attains the age of twenty-one years, at which time there shall be paid to my said son one fourth of said share or portion, and the income from the residue thereof until he attains the age of twenty-five years, at which time he shall receive from said trustees another one fourth or one third of said residue, and the income from the remainder until he attains the age of thirty years, when the remaining portion of the principal sum of his share shall be paid to him. Provided, that if my said son, *Augustus G.*Buggies, or my daughter *Gertrude Golden Buggies Bose*shall die, leaving no issue, before receiving the full shares or portions herein provided to. be paid to him or her, such shares or portions not received by him or her, shall go to my heirs at law who shall be living at the time of his or her death. . . . Provided, that if any of my said children shall die before receiving his, her or their share, the portion thereof not received by him, her or them, shall go to his or her children if any are left surviving; but if no issue survives, then to my heirs at law who *442shall be living at tbe time. Provided further, that if prior to my decease I shall have made any advancements to any of' my children, either of money, stocks, other personal property or real estate, such advancement shall be added to and deemed a part of my estate in this my will bequeathed and devised in trust, for the benefit of my children, at the price of valuation named in the charge against any such child or children in my books of account, and in the division of said estate into shares, ■as hereinbefore provided, the same shall be deducted from the share of the child or children against whom such charges- or charge shall be made, at the face of such charge without interest.”

And by a codicil, which recited the proviso of said paragraph with reference to the payment to *Gertrude*in the event of her survival of her husband, modified the same in following words:

“Provided, that if my said daughter shall survive her husband, LL H. Rose, and live to be fifty years of age, one third of said two-thirds residue, that is one sixth of the original amount set apart as her share or portion, may be paid to her by my said trustees, should she desire it, as soon after the-death of said TI. H. Rose as practicable, but not however until after she is at least fifty years of age, and the income of the remaining portion of said two-thirds residue, during her natural life shall be paid to her, and the principal sum of said two-thirds residue, or so much thereof as shall not be paid to her as herein provided, shall after her death go to-her issue her surviving, but if she shall die leaving no issue her surviving, the same shall go to my heirs at law then living.”

Upon settlement by the executors the residue of the estate' remaining applicable to the fifth paragraph of the will was $225,600, including an advancement of $8,000 to appellant There being but two children, that total was divided into' halves, or $112,800 each, one of said halves pertaining to a brother of the appellant, and the other to her. The trustees paid her $20,200 in money, which was $8,000 less than one quarter of said one-half. Later, after attaining the age of' *443fifty years, sbe petitioned tbe county court for construction,, and tbe county court construed tbe will as requiring payment to ber witbin one year after testator’s death of one quarter of all tbe property actually coming to tbe bands of tbe trustees-for ber, wbicb be found to be $104,800, and a like stun upon ber attaining tbe age of fifty years, and accordingly ordered that an additional $6,000 be paid ber in satisfaction of the-second instalment. Upon appeal tbe circuit coifrt rendered judgment to tbe effect that tbe $8,000 of advancement should be treated as constituent part 'of tbe share passing to the trustees for tbe benefit of appellant and should be charged to ber as a payment upon Hie first instalment, so that sbe should receive nothing additional in money upon that instalment, but should receive $28,200 as ber second one-quarter by reason of having reached tbe age of fifty years. From that portion of tbe circuit court’s judgment *Gertrude Golden Buggies Bose*brings this appeal.

For tbe appellant tbe cause was submitted on tbe brief of *J. M. Gooding*and *TI. II. Bose.*

For the respondent there was a brief by *Doyle & Hard-grove,*and oral argument by *T. L. Doyle.*

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 *444them 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 *445attributable 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.

TimliN, J.

(dissenting). I think the judgment of the circuit court should be affirmed. The testator, Augustus G. Euggles, who died November 14, 1887, devised the rest, residue, and remainder of his estate to certain designated trustees-in trust to convert the same into money, stocks, or other securities,

> “and divide them into as many equal shares or portions as there shall be living of children horn to me, including any child or children begotten by me and bpm after my decease, to be held in trust by them, one share for each such child, and dispose of them as follows, to wit: Pay to my daughter *Gertrude Golden Buggies*Bose, within one year after the proof' and allowance of this my will, or as soon thereafter as practicable, one fourth of her share or portion, retaining the residue thereof and investing and keeping invested the same in such manner as to them, the survivors and survivor of them, and their successors shall best seem, and pay to my said daughter the interest and income derived therefrom until she shall attain the age of fifty years, if she shall live so long, at which time they shall pay to her one third of said residue, retaining the remaining two thirds of such residue, and pay to her during her natural life all interest and income derived therefrom quarterly, or as near quarterly as practieahle; and from and after her death, without issue her surviving, such residue to go to my heirs at law who may be living at that time; provided that if my said daughter shall survive her husband, H. H. Eose, my said trustees are hereby authorized and empowered to pay to her, should she desire, as soon after *446tiie death of said H. H. Rose as practicable, one half of said two-thirds residue and the income of the remaining one half thereof during her natural life, the principal of which after her death, without issue her surviving, shall go to my heirs at law then living. *To invest*and keep invested the share or portion set apart for my son *Augustus G.*Buggies, and during his minority, pay over *to*his guardian from time to time as said guardian may require, the income derived therefrom, and said guardian is hereby authorized and requested to use the same or so much thereof as in his judgment may be necessary for the support, maintenance and education of my said son until he attains the age of twenty-one years, at which *time*there shall be paid to my said son one fourth of said share or portion and the income from the residue thereof until he attains the age of twenty-five years, at which time he shall receive from said trustees another one fourth or one’ third of said residue, and the income from the remainder until he attains the age of thirty years, when the remaining portion of the principal sum of his share shall be paid to him. Provided, that if my said son, *Augustus G.*Buggies, or my daughter *Gertrude Golden Buggies Bose*shall die, leaving no issue, before receiving the full shares or portions herein provided to be paid to him or her, such shares or portions not received by him or her shall go to my heirs at law who shall be living at the time of his or her death. And if there shall be .any other child or children bom to me, the share or shares set apart for him, her or them, shall be invested as hereinbefore provided and so much of the income derived therefrom as he may deem necessary and proper shall be paid from time to time to his, her or their guardian, to be used in his discretion, for the support, maintenance' and education of such child or ■children during his, her or their minority, after which such income shall be paid direct to such child; the principal sum or sums of said shares- or share to be disposed of as follows, to wit: One fourth'shall be paid to him or her on attaining the age of twenty-one years, one fourth on attaining the age of twenty-five years, and the residue at the age of thirty years. Provided, that if any of my said children shall die before receiving his, her or their share, the portion thereof not received by him, her or them shall go to his or her children if any are left surviving; but if no issue survives, then to my heirs at law who shall be living at the time. Provided fur-*447tber, that if prior to my decease I shall have made any advancements to any of my children, either of money, stocks, other personal property or real estate, such advancement shall be added to and deemed a part of my estate in this my will bequeathed and devised in trust, for the benefit of my chil'dren, at. the price of valuation named in the charge against • any such child or children in my books of account, and in the division of said estate into shares, as hereinbefore provided, the same shall be deducted from the share of the child or children against whom such charges or charge shall be made, at the face of such charge without interest.”

The testator added a codicil to said will, in which he

> “Provided that if my said daughter shall survive her hus- . band, H. H. Eose, and live to be fifty years of age, one third ■of said two-thirds residue, that is one sixth of the original amount set apart as her share or portion, may be paid to her by my said trustees should she desire it, as soon after the death of said H. H. Eose as practicable, but not however until after she is at least fifty years of age, and the income of the remaining portion of said two-thirds residue during her natural life shall be paid to her, and the principal sum of said two-thirds residue, or so much thereof as shall not be paid to her as herein provided, shall after her death go to her issue her surviving, but if she shall die leaving no issue her surviving, the same shall go to my heirs at law then living.”

The testator had entered in his handwriting in his books ■of account:

> “Debtor, *Gertrude Colden Bose née Buggies*January 27th, 1886. I, A. 0. Euggles, have deeded to *G. C.'Bose*the opera house property being the east half of and south twenty-five feet of the west half of lot 14, block 1, Darling addition. The value of which I consider and charge her herewith at $8,000, which sum at my death is to be accounted for and allowed for in her share of my estate as per provisions in my -will, but to carry no interest so as to make the final division •of my estate proper and just as far as any other heirs may be concerned.”

The testator left, him surviving, two children, a residuary ■estate subject to the trust amounting, including the said ad*448vancement, to $225,600, and, exclusive of the advancement,. $217,600. *Gertrude*is now upwards of fifty years of age, and ber husband, H. IT. Rose, is living. The first payment' to *Gertrude*wbicb was absolutely due to her under the will one year after probate was $20,200, computed, as I believe correctly, as follows:

> Trust estate . $217,600 0©'

> Advancement to *Gertrude*added as directed by tbe will.. 8,000 00

> Total. $225,600 00

> There being but two children, take one half of this. 112,800 00

> One fourth of this half due Gertrude. 28,200 00

> Less advancement to her. 8,000 00-

> Amount paid Gertrude. $20,200 00-

> Leaving a residue in this half of the trust estate of. 84,600 00

Her present claim and the opinion of the majority of this court is that this first payment and the remainder should have been computed as follows:

> One half of trust estate, including therein the advancement . $112,800 00-

> Less advancement to Gertrude. 8,000 00

> Remainder. $104,800 00

> Of which *Gertrude*should have been paid one fourth, or 26,200 00-

> Leaving a residue in this half of the trust estate of. $78,600 00-

Hence that there is in arrears to her from the first payment $6,000. But the language of the will is:

> “In tire division of said estate into shares as hereinbefore-provided the same [the advancement] shall be deducted *from the share of the child*or children *against whom said charge-shall be made*

The book entry relating to the advancement is:

> “To be accounted for and allowed for in *her share*of my estate as per provisions in my will, but to carry no interest so as to make the final division of my estate *proper and just as-far as any other heirs may be concerned*

It will be observed that by the majority opinion the $8,000 advancement to *Gertrude*is deducted from moneys not by the will belonging to Gertrude, but from the whole one half *449of tbe trust estate, in wbicb one half *Gertrude*bad by the will an absolute interest only of one fourth, a further interest of one fourth or one third of the remainder, which is the same thing, contingent upon her reaching the age of fifty years, and a further interest of one third of the remaining two fourths or one sixth of this one half of the estate contingent on her living to be fifty years of age and also surviving her then husband. This left one third of this one half to go by the will to the issue of *Gertrude*surviving her, if any. If none, to the heirs at law of testator living at the death of *Gertrude*without issue. Taking the figures heretofore referred to, the construction of the will and codicil declared by the majority of this court leaves the three-fourths remainder after the first fourth is paid to *Gertrude,*$78,600, deducting another fourth of the half or one third of this leaves $52,400, deducting one third of the remainder' or one sixth of the one half would leave $34,934 for the issue of *Gertrude*or the heirs at law, as the case might fall out. If *Gertrude*had died after receiving the first payment and before reaching fifty years of age, nearly the whole of this advancement to her would come out of the shares of others; but as it is, if we apply the advancement against the first and only certain payment to *Gertrude,*we have the remaining three fourths of this one half equal to $84,600; deducting another one fourth of the half or one third of this sum leaves $56,400, and deducting one third of the remainder or one sixth of the one half leaves $37,600 for the issue of *Gertrude*or the heirs at law, as the case may be.

I do not think a construction of the will which results in deducting part of this advancement from the share of the issue of *Gertrude*or from the share of the heirs at law permissible or proper, or authorized- by any language found in the will. To lawyers familiar with the law of testamentary trusts as that law was understood at the time this will was written, it must be apparent that the principal object of the testator in dividing the trust estate into as many parts or *450shares as he left children him surviving was to create as many separate trusts as there were children, and so conform to the New York rule stated in 22 Am. & Eng. Ency. of Law (2d ed.) 118, 119, and avoid the objection that the power of alienation was by the trust suspended for more than two lives in being in case there were more than two children. In all wills disposing of large estates and creating trusts, there is, as a general rule, a lawyer to counsel the manner of disposition in detail and to draft the will so as to conform to what he understands to be the law. It does not follow that, because a trust estate is divided into as many shares as there are children, the testator intended such larger division where he speaks of the share of a certain child, especially where the will only gives the designated child a fraction of such part or share and tire income of the remainder of that filiare. To the testator and for the purpose of offsetting an advancement provided for in the will, the share of that child must be, I think, tire share which such child is to actually receive. Secs. 3956-8961, Stats. (1898); 1 Am. & Eng. Ency. of Law (2d ed.) 760 *ei seq.*The fact that the advancement is one provided for by will of course throws us back upon the inquiry what was the testator’s intention; but facts, circumstances, and results are more potently indicative of intention than mere doubtful phrases, which may also well bear the reasonable meaning here attributed to them. I have no doubt that the true rule of law will be found to be that advancements to a devisee or legatee recognized by will should be set off against bequests or legacies absolutely or presently due to that devisee or legatee, rather than against contingent requests or legacies to the same devisee or legatee which may never become due, and that the advancement should always be set off against bequests due to the person to whom the advancement was made, rather than against a trust fund or a portion of a trust fund of which that person has only the income and the corpus of which belongs to other persons by the terms of the will.