Duus v. Wynea, 167 N.W. 394

Duus v. Wynea

167 N.W. 394 | S.D. | 1918

McCOY, J.

Tine question presented by the appeal in this case lis ttflie construction /bo be placed upon the will of Teatske Wynea, deceased, who -died October 26, 1903. The will in question was executed March 22, 1902, ,and contained five paragraphs-, in substance as follows:

First, fit is my wiilil, and) I do order and direct my executor to pay my funeral and last sickness expenses ■ and my 'debts out off my estate.

Section, after the payment of miy funeral and last sickness expenses and my debts, I give, devise and bequeath to my husband, Ulbe Wynea,, the use and benefit of all my property, real and personal, ¡during his llife.

Third, at the Ideaith of my husband I give, devise and bequeath to [¡here folllolws specific money bequests to her specifically named daughters and sons and grandchildren, amounting to $5.7oo].

Fourth, I give, devise and bequeath the residue of my property, if any there be more than as above provided for, to my *418daughters and stein's above named, tire same to be divided equally store and Store 'alike.

Fifth, fit Is my wish that my son Theodore shall- tov-e the privilege of keeping my fanmi, if he so desire, upon paying the amounts -herein provided and all expenses.

This wilb was admitted to probate on the 22b 'day of December, 1911. Ulbe Wynea, the surviving' husband, died February 11, 1915. At tine time of the execution of said will tire said testabrix was1 the Owner of real property tolf the then value of $6,000, of which she died possessed, and1 which real property at the time of the death of her husband was worth $18,000. At the time of ithe death- of the testatrix she also left personal property of the value of about $80. By the order and decree for distribufckm of the county court and judgment on appeal therefrom to tine aircuit court, it was adjudged that by the fifth: paragraph of salid) will it w'as the intention of said testatrix to 'devise tO' her said son Th'eloldbre all the said real) property upon condition tba-t he pay tine bequests provided for in paragraph 3 of said will, togelther with tine expenses of administering the said e-state. From such judgment and decree of the circuit court other heirs appeal.

[ 1 ] It -is- oonteridied and urged by appellants that by tine fifth clause of said will ¡there was no intention on the part of the testatrix, nor did she thereby make to her San Theodore a devise or beqjuest of said real property upon the condition that, if he so- desired, he pay- tlie said special -money bequests or legacies amounting to $5,700 provided for in paragraph 3 of saildi will, together with’ expenses. We are of tine opinitoln and so hold that the appellants are night in their contention. It will be observed that the' testatrix in the tbind -and fourth paragraphs of her will used (the words “give, devise and bequeath',” indicating that she knew the appropriate .amldl proper words by which to. create a devise, in that isbe knew hoiw to distinguish and -differentiate between the words which would create a devise and those which would not. It will .also be -observed that from-, tire language used in the fifth paragraph she di'd- not undertake to- give to her s-on- Theodore anything other than a privilege. This paragraph does not state that “my wish is -to. give to my stein Theodore any farm,” but the statement is that he should have the pi'ivilege of keeping the same, if he so desired, upon a certain Specified condition. In *419principle’toe case of Nunn v. O’Brien, 83 Md. 198, 34 Atl. 244, is very similar to toe case at bar. In that case the testatrix, after bequeathing -certain specified sums in trust, b-y a residuary clause bequeathed to her bu'sband toe “rest, residue and remainder” of her estate, and then followed! toe residhary clause with a paragraph expressing toe wish that after the death of her husband whatever remained of toe property should go to a certain -son of testatrix. In that 'case it iwais held to'ait frotan toe language used by her she clearly understood the difference -between. an imperative direction arid! toe exprestsion -of a mere wish indicating what she thought would be a reasonable disposition -of the property after the dealto falf her husband; that she fully understood the meaning -of the worldis used in ealdh of the preceding paragraphs', and that toe wish expressed in relation to whatever might remain olf the rest andl remainder of her estate at the -death o-f her husband was merely a word of solicitation, and not intended to contrioil the disposition) of the property. Thie case of Aldrich v. Aldrich, 172 Mass. 101, 51 N. E. 449, involves toe same principle. In that case, after making certain imperative directions and bequests, toe w® contained a residuary clause b-y which the testator gave and bequeathed to his wilfe toe rest and residue of hist estate, closing toe will with words indicating a hope and desire that after toe deathl of toe wife th'e property remaining would’ be divided] aimO-nig the children. 'In -that ¡case it was- held that if toe testator baldl intended to create a trust in favtolr -o-f his children at his wife’s (deathl there could be n© doubt that he knew how to do it in clear and unmistakable terms, andi that it wias inconceivable that ¿if such was. his purpose he should have expressed himself in the manner in which- he did; that there is no doubt that word's of recommendation, confidence, entreaty, hope, or desire have been held -sufficient under some circumstances (fa create a trust, but that such Words as used in that case were merely precatory, signifying a hope or wish in regard! ito property not amounting to a testamentary disposition thereof. The general rule seems to' be:

[2] “Words in a will which are merely -expressive of a desire or intention on the part 'olf toe testator, arid! are merely advisory or precatory in -character, may be used! in resolving doubts in -other parts of toe will; but they do not amount to a testa*420ment-ary disposition, and do not control or alter express dispositions in the will, (unless it iis apparent that it was- the testator's intention that suidh -words of desire or intention should be mandatory.” 40 Cyc. 1404.

In this case if the testatrix had used the words “wish or desire” in making bequests, 'tod devises, ¿indicating that she did not then have in mind apt or appropriate wioirdls to create a devise or bequest, then there might be some' plausible ground for holding that she intended a devise by the fifth paragraph of her will; but it dearly appearing that she toad in' 'mind and -did use aplfc tod ,appropriate words in creating devises and’ bequests -in the previous paragraphs of this will, it oan-not reasonably be held that she ' had any intention- of creating a devise by the Use of -the wloird “wish” ¿n the fifth paragraph-. Hence -we are of the view that she 'did not intend- and did not in' fact devise the said real property to her son Theodoae by the said fifth paragraph of said ■will. Our holding i© that upon the death of testatrix the title to salid property was- vested i.n all the sons and daughters, share and share alike, subject to- the life estate of the father, and subject to due payment of her funeral, last sickness, -and Coist of administration expenses ,'anld' general debts, and the specific money legacies; -that paragraph' 5 only expressed a wish or hope that the son Theodore might retain the farm, if he so desired, by paying to each of the other heirs' what was devised' and bequeathed to each of them under the will, including the residuary danse, tod tlie payment of all the salid expenses and debts. We are Olf the v>w, however, that although no- title or absolute right to any of said' pnopeity was given or devised to s-aád son Theodora by said paragraph 5, still, with the consent of all the said o-n-s and daughters,, the county court might order and -decree that the s-aiid fends b-e appraised, and that the son Theodore pay to each and every heir the full -amloiunt coming to each under the will, based upon such appraisement.

The judgment and order appealed from are reversed, and tíre cause remanded for further procedure in- harm-ony -with this decision.