Flittner v. Graf

174 Wis. 178 | Wis. | 1921

Vinje, J.

The evidence is lacking as to the age of testatrix and is indefinite as to the total value of the estate left by her. She specifically directed that a grandson and two of her sons should take nothing under the will. To the executrix she devised a lot in Milwaukee and she also made her the residuary legatee. Her household furniture and wearing apparel she gave in equal parts to her two daughters named. It appears that she was on good terms with both daughters and with her son-in-law, Charles Graf, who visited her frequently in her last sickness. She was cared for by the executrix, who lived with her, and from the nature and duration of her sickness it is probable that she did not expect to recover at the time she executed the deed, though she was then not considered in extremis.

It is the contention of the executrix that the execution of the deed and the taking of a mortgage to secure the unpaid balance operated as a revocation of the fifth paragraph of the will because, since the latter takes effect at death only, the subject matter of the paragraph had been so dealt with between the execution of the will and her death that there was nothing upon which the will could operate when it took effect.

We regard this contention ill-founded. So far as paragraph 5 is concerned the dominant purpose of the testatrix was (a) to pass title to the lot to her daughter and her husband, (b) to bequeath to them whatever sum was due on the land contract at the time of her death, and (c) to retain the value of the contract during her life. By the deed and mortgage she conveyed the title, but she left unchanged the bequest of what was due, and she retained the value of the new contract during her life. The will operated upon the indebtedness evidenced by the mortgage and made a bequest of it. The fact that it was secured by a mortgage instead of by a land contract is quite immaterial. As a prudent person, she desired to have both the principal and interest of the indebtedness for her use if necessary. When she no longer needed either, that is, upon her death, both principal and interest then due were to become a bequest to the purchasers. This construction we deem is required by the transactions themselves, and harmonizes with the situation and relation of testatrix to those she intended to be the objects of her bounty. It is not probable that she intended to be le$s generous to the purchasers, her daughter and son-in-law, by changing from a land contract to a deed and mortgage. Indeed the contrary is more probable. She wanted to vest them with title before she died so there could be no failure of title in them. She no doubt believed the will according to its provisions would cancel the debt when she died. Had she thought differently the will would have been changed to correspond with the intended change in the bequest to them.

By the Court. — Judgment affirmed.