23 N.W.2d 498 | Wis. | 1946
In the matter of the estate of William H. Britt, deceased.
The proceedings arose upon two petitions for the construction of the will of testator. Petitioners are Nettie Britt, Leonard Britt, William Britt, Oliver Britt, Elmer Britt, and Deborah Britt Hoadley. The portion of the judgment appealed from is as follows:
"It is further ordered and adjudged, that one half of the residue of said estate be, and the same is assigned: . . . a one-third part thereof to Fannie Britt, a widow of John Britt; and that one-third part thereof to Minnie Britt, a widow of Louis Britt."
The material facts will be stated in the opinion. The facts in this case are not disputed. The question raised upon this appeal is the construction of paragraph "Third (a)" of testator's will which reads as follows:
"(a) One half of the residue of my estate, I give, devise and bequeath, share and share alike, to my three brothers, namely, Henry Britt and Louis Britt of Madison, Wisconsin, and John Britt of St. Paul, Minnesota, being to each a one-third part thereof, to them and their heirs forever."
Appellants are the sons and daughters of Henry Britt and are the legal heirs to whom all of the property disposed of by "Third (a)" would go in case of an intestacy. Respondents, except for the executor, are representatives of Fannie Britt, widow of John Britt, who was his only heir, and Minnie Britt, widow and only heir of Louis Britt. Fannie Britt died August 26, 1945, and Emma Murphy, administratrix with the *32 will annexed of her estate, was substituted as a party. There is also the suggestion of the death of Minnie Britt on March 18, 1946.
Appellants contend that the words "to them and their heirs forever" are words of limitation, descriptive of the estate intended to be bequeathed; that since all three of the brothers named in "Third (a)" predeceased testator and there is no antilapse statute in Wisconsin applicable to the situation, the legacies lapsed resulting in an intestacy. Appellants claim that the words "to them and their heirs forever" are words of art which, in the absence of some modifying language in the will, have always been construed to describe and limit the estate granted, and not to indicate a substituted gift in case the named beneficiary died before testator. They cite Estate ofJudson,
"It is clear under the authorities that the words `heirs and assigns' are merely words of limitation, descriptive of the nature of the estate given to the legatees. Cleaver v. Cleaver,
In Will of Johnson,
"It is claimed that the use of the words `heirs and assigns forever' indicates an intention on the part of the testatrix that should the legatees therein named predecease her the legacies should go to their heirs and assigns. The words `heirs and assigns' when used in this connection have a well-settled meaning in the law. They are universally held to constitute words of limitation, descriptive of the estate, and their use in such a connection does not constitute a substituted devise or bequest.Estate of Judson,
Respondents' contention, upheld by the trial court, is that the intention of testator, derived from the will as a whole *33 construed in the light of the circumstances, was to make the gifts to heirs in "Three (a)" substitutionary in character.
The legal rules applicable generally to cases such as this have recently been set forth in Estate of Hoermann,
The presumption of the law is against an intended intestacy as to any part of an estate because the will indicates a contrary general intention. This presumption is strengthened by the presence of a residuary clause, one obvious purpose of which is to preclude the occurrence of intestacies by unforeseen contingencies. In the light of this it is difficult to suppose that testator in the clause in question intended to produce from the very start an intestacy as to a substantial portion of the property dealt with in the residuary clause of his will. The strong likelihood is that he must have intended the gifts to the heirs to be substitutionary in character. The language of the will accommodates itself to such a construction and, while the matter is not free from doubt, we conclude that the trial court came to a correct conclusion.
By the Court. — Judgment affirmed. *35