#### Wolbert, Appellant, vs. Beard and others, Respondents.

*April 19*

May *8, 1906.*

*Partition: Estate in possession: Wills: Construction: Power in trust: Equitable conversion: Appointment of trustee: Precatory words.*

1. Land was devised to testator’s widow for her life, and an annuity was also bequeathed to her. Subject to such provision all the testator’s property was given to his daughter and a grandson, it being provided that in case the daughter died before her husband her share be paid to her children, and that claims against the grandson, part being in favor of the estate absolutely and part contingently, should be charged to and deducted from his share. The duty of making such payments, as to both shares, was imposed on the executor, and the will stated that it was the testator’s desire that the probate judge, after the settlement of the executor’s account, appoint him trustee to control and manage the estate, to collect rents, pay all debts, and deposit all proceeds in savings bank until all debts were paid and the widow paid, from the proceeds of said rents, when her annuity became due. The will further directed that the real estate be kept intact until claims were paid, and then, if the heirs should prefer to continue receiving the proceeds, they might do so by securing payment of the widow’s annuity. *Held,*that it was the testator’s intention that the executor as trustee should continue in control of the estate under a power in trust during the lifetime of the widow, with power to convert the whole into *money;*and during such time the grandson had no estate in possession which • would entitle him to maintain an action for partition.

*3922. The request that the probate judge appoint the executor as trustee was equivalent to an appointment by the will.

3. When words of recommendation, request, or the like, contained in a will, must necessarily be followed in order to carry out the clear purpose of the testator, they are to be regarded as words of command or direction.

4. In a will a trust may be created by intention of the testator discovered by aid of judicial construction, as well as by words taken in their literal sense.

Appeal from a judgment of tbe circuit court for Rock county: B. F. DuNwiddie, Circuit Judge.

*Affirmed.*

Action for a partition.of certain real estate beld by title referable to tbe will of P. M. Pierce, deceased.

Mr. Pierce died testate. Plis will was duly admitted to probate, defendant *Edward F. Hansen*being appointed executor. In due course tbe administration of tbe estate, except settlement of tbe executor’s account and tbe entry of a final order, was completed. Tbe claim of tbe plaintiff is tbat be and tbe defendants *E. E. Beard, Boland D. Grocker, Estelle Crocker Beese, Bachael Beard,*and *Dorothea Beard,*devisees under tbe will of tbe entire title to tbe realty, subject to a life estate in tbe widow, *Elizabeth G. Pierce,*are entitled to possession thereof, and are in fact in sucb possession so far as tbey were entitled thereto by tbe will. Tbe executor claims tbat after tbe full execution of tbe will, as regards administering tbe estate, be is required to control tbe property under a power in trust during tbe lifetime of tbe widow. Tbe real estate in controversy includes what was tbe homestead of deceased, and was devised to tbe widow for her life or so long as she remained unmarried. There was also bequeathed to her an annuity of $600 per year, to be paid quarterly in advance for her life, or so long as she remained unmarried. All tbe property, subject to sucb provision for tbe widow, was devised and bequeathed to tbe plaintiff and tbe defendant *E. E. Beard,*tbe provision for tbe latter being, however, contingent upon her surviving her husband, R. 0. *393Beard, and on condition that in case of her not so surviving it 'should go to her four children, the defendants *Boland D. Crocker, Estelle Crocker Beese, Bachael Beard,*and *Dorothea Beard.*The share of plaintiff was conditioned that a note for $719.90, given by him to the deceased, and the amount •due on another note, given by the dormer and indorsed by the latter to the defendant bank, for $1,200, should be a •chárge thereon.

All the facts aforesaid and such others as were requisite to make a cause of action for a partition, if one was proper, in view of the state of the title under the will, were stated in the complaint. It was alleged that all persons interested in the realty in remainder were ready and willing to secure the annuitant such part of the income provided for her as was made chargeable upon their several shares. A copy of the will was made a part of the complaint. That portion thereof material to be examined in the disposition of the appeal is as follows:

“All the residue of my estate, both real and personal, of whatsoever it may consist, or wherever it may be found, I give •and bequeath to my heirs, to wit, *Mrs. E. E. Beao'd,*my daughter, wife of R. O. Beard, now of Minneapolis, Minnesota, .and my grandson, *Granville W. Wolbert,*now of St. Paul, Minnesota, share and share alike. In case of the death of my said daughter before her husband I order that her share ■of my estate be paid to her four children, to wit, *Bolcmd B. Crocker,*of Newark, New Jersey, *Estelle Crocker Beese,*wife of Dr. Reese, of Minneapolis, Minnesota, *Bachael Beard,*her daughter, and *Dorothea,*also her daughter, both of Minneapolis, Minnesota, share and share alike.

“I order that one note for $719.50 Seven Hundred and nineteen and 50-100 dollars, made by my grandson, *Granville W. Wolbert,*to me, being part of estate, if not sooner paid, be charged to him and deducted from his share of my estate with the interest remaining unpaid.

“I also order that if my grandson *Gi'anville W. Wolbert*shall owe any bank, or other person in Beloit, which has my name signed to the debt, it shall be charged to him and de*394ducted from his share of my estate, as such signature of miné-is hut only a security for the payment of said indebtedness,, the debt being made for his sole benefit, and therefore should be paid by him with interest.

“At the settlement of my executor’s account in probate-court I desire the said probate judge to appoint my said executor, *Edward F. Hansen,*trustee, to assume control of all my estate, both real and personal, to prosecute and execute-the business of said estate, especially and generally for the best interests of said estate, to rent all tenements to good,, honest, responsible tenants, who will pay rents in advance,, and look after all temporal interests and all repairs, and do-all necessary work to collect rents, pay all debts, and deposit all proceeds in savings bank until all my debts are paid; and my wife paid, from the proceeds of said rents, when her annuity becomes due.

“I order that my real estate be kept intact, that nothing-be sold before all claims are liquidated, and then, if my heirs should prefer to continue receiving the proceeds, they will' have the right so to do by securing wife her annuity promptly when due.”

The executor demurred to the complaint for insufficiency, and the demurrer was sustained. The plaintiff appeals.

The cause was submitted for the appellant on the brief of' *E. D. McGowan;*for the respondents *Rea/rd, Oroclcer,*and *Reese*on the brief of *Ruger <& Ruger,*attorneys, and *Henry J.. Fletcher,*of counsel; and for the respondent *Hansen*as executor on that of *J. 0. Rood.*

MaRSiiall, J.

It is conceded that if testator purposed' that the control of his estate should remain with the executor,, acting as trustee, after conclusion of the ordinary administration, plaintiff had no interest in the land sought to be partitioned, denominated in sec. 3101, Stats. 1898, an “estate in possession,” and so is not entitled to maintain the action. The case, therefore, must turn on the construction given to the will.

The property, in express terms, was willed to appellant and *395bis sister, subject to tbe homestead right of the widow. It is evident, however, it was intended that the right of possession should be separated from the legal title, since it was provided that the'share willed to the daughter should be paid to her four children in case of her death during the lifetime of her husband, and that claims to a large amount against appellant, part being in favor of the estate absolutely and part contingently, should be paid out of his share. The duty of making such payments, as regards both shares, was imposed on the executor. It is difficult to see how that duty could well be performed unless he retained control of the property with authority to convert the same into money.

The words “pay to her four children share and share alike”' as regards the share contingently willed to the daughter, and the words “charged to him and to be deducted from his share” as regards appellant’s portion, pretty clearly show that the purpose of the testator was that his estate should be treated as personalty. It would hardly be possible to take an estate composed largely of realty, divide it into two shares, satisfy out of one share a large amount of claims necessarily payable only in money, and subdivide the .other share into four parts and pay one of such parts to each of four persons, in any other way than by converting the whole into money. In such circumstances such an intention is to be presumed 'and the doctrine of equitable conversion applied. *Becker v. Chester,*115 Wis. 90, 91 N. W. 81, 650. Obviously it would be impossible to execute that part of the will relative to making such four payments without controlling the daughter’s share till after the death of her husband.

In harmony with the foregoing, the testator expressed a desire that his executor shonld not surrender control of the estate upon the settlement of his account'covering the administration period, but that under an appointment by the county judge as trustee he should assume, after such term, full control of all the property and remain in such control so long as *396necessary to fully carry out all purposes expressed in tbe will. Tbe idea tbat sucb a period would not terminate till tbe death of bis widow is clearly manifested by tbe direction for control to last and tbe income as it accrued to be paid into tbe bank for disbursement so far as necessary, in payment of tbe widow’s annuity of $600 per year, till sucb annuity should be fully paid.

Further, tbe words expressly directing tbe “real estate be kept intact” till all claims should be liquidated (meaning till tbe debts of tbe deceased proved against bis estate should be paid), and if tbe heirs “should prefer to continue receiving tbe proceeds they will have tbe right to do so by securing” prompt payment of tbe annuity, by necessary implication mean tbat after payment of all claims against tbe estate tbe ■executor or trustee need not longer keep the real estate intact, but may convert tbe same into other property under'the broad •discretionary power given to manage tbe estate for tbe best interests of all in bis jxidgment, subject to tbe opportunity ■afforded to tbe heirs as stated. Tbe words “continue to receive tbe proceeds” by themselves would suggest a prior receipt thereof by tbe heirs, but tbat would contradict tbe express requirement for tbe executor or trustee to receive sucb proceeds and deposit the same in tbe bank during tbe annuity period. Sucb words must mean tbat if tbe heirs prefer receiving tbe proceeds of tbe property *in specie*to having tbe executor or trustee accumulate tbe same they may do so by securing payment of tbe annuity to tbe widow independently ■of sucb proceeds. Tbe clause suggests opportunity for tbe heirs to receive tbe income of tbe property *in*specie, not to xeceive tbe corpus of tbe property either in tbe form in which it was left by tbe testator or any other.

So, on tbe whole, tbe will plainly contemplates vesting of tbe legal title to tbe property in appellant and bis sister, with a power in trust in tbe executor as trustee giving him full control, including power to sell tbe property 'during tbe lifetime *397of the widow subject to ber right and subject to the right of' the heirs, themselves, to have the income of the property as it was left, upon condition of their giving security for payment of the annuity.

The fact that the testator did not, in terms, appoint the executor as trustee, but requested the county judge to do so, is-of little importance. Manifestly the handling of the property as the testator desired it should be administered would be impossible without a trustee, therefore he must have intended the request for 'the appointment of the executor in that regard, at the termination of the administration period, as-equivalent to an appointment by will. If any act on the part of the probate judge were necessary, it would be one which it would be his duty to perform the same as in case of the appointment of an executor in harmony with the testamentary suggestion. The request under the circumstances created what is called a precatory trust.

When words of recommendation, request, or the like, contained in a will, must necessarily be followed in order to carry out the clear purpose of the testator, they are to be regarded as words of command or. direction. *Knox v. Knox,*59 Wis. 172, 18 N. W. 155; *Swarthout v.*Swarthout, 111 Wis. 102, 86 N. W. 558. In a will a trust may be created by intention of the testator discovered by aid of judicial construction, as-well as by words taken in their literal sense. That follows necessarily from the primary rule for the treatment of wills,, that the intention of the testator manifested by his testamentary words must control. That rules this case in favor of the respondent.

*By the Court.*— The judgment is affirmed.