Bankers Trust Co. v. Graves, 183 Wis. 643

183 Wis. 643 | Wis. | 1924

Rosenberry, J.

It seems quite remarkable that the language of the will could have been so interpreted as to hold that the divorce of the wife, Fannie, constituted her husband her survivor. This construction of the will is supported by an ingenious and rather circuitous argument in which counsel are compelled to maintain the proposition that a divorced man can properly be spoken of as having survived his wife.

Certainly the word “survive” in its etymological sense has no such meaning. It is commonly understood to mean and is so defined by lexicographers “to live beyond,” “to live longer,” and a survivor is one who survives or outlives another person, a time, an event, or thing. To hold that a husband outlives his wife because he lives beyond the time that he was divorced from her requires an utter disregard of the legal as well as the ordinary meaning of the word “survive.” The word “survive,” used in its natural and ordinary sense, means “to outlive.” Hill v. Safe Deposit & T. Co. 101 Md. 60, 60 Atl. 446; Reynolds v. Iowa & Nebraska Ins. Co. 80 Iowa, 563, 46 N. W. 659; Blanton v. Mayes, 58 Tex. 422.

The decision of the trial court is supported by an argument to the effect that from the surrounding facts and circumstances it appears that it was the intention of the testator to prevent any part of his estate from passing to the persons who were then the wives of his sons 'George W. and Frank B., and, inasmuch as the wife, Fannie, is divorced from Frank B., she cannot inherit from him; therefore, the testamentary purpose is accomplished and the will should be construed accordingly. This is not construing or interpreting a will. It is making an entirely new will for the testator. He used no language appropriate for the expression of any such purpose or intention. It is quite clear that he had other considerations in mind and did not intend to have his son Frank B. become the owner of his one-third share in the estate, because in the event of the birth of issue by his then wife the corpus of the estate was to pass to the children. We do not understand by what process of reasoning the conclusion can be reached that the termination of the marital relations is equivalent to death in a matter of sur-vivorship. It requires no argument to show the fallacy of such a conclusion. When the language of the testator is plain and unambiguous,, the meaning of the language used clear and definite, there is no room for construction or interpretation. An attempt to thwart the testamentary purpose by a strained and unauthorized construction and so defeat the will of the testator or substitute for his will the judgment or decree of the court should not be given judicial approval.

By the Court. — So much of the judgment of the county court as holds “that at any time upon termination of the marital relationship with his then wife, either by her death or divorce from her, without issue, the son affected thereby should come into the absolute enjoyment of his one-third of the testator’s estate,” is reversed and set aside, and the cause is remanded with directions to the county court to enter judgment construing the will to mean that the trust estate shall not be terminated under the facts as they now exist until the death of Fannie, the wife of Frank B. Rosecrantz at the time of the execution of the will.