Lovass v. Olson

92 Wis. 616 | Wis. | 1896

. Winslow, J.

Two contentions are made by the appellant: First, that the fourth, fifth, sixth, and seventh clauses of the will were rendered absolutely inoperative by the decease of the testator’s wife prior to the death of the testator; second, that in case this proposition is held unsound, still the respondent, as residuary legatee, under the seventh and •eighth clauses, took only a life estate, and that the property should not have been assigned to her absolutely at the present time.

1. In construing a will the court must consider the whole will, and must give effect to the intent of the testator if -it can be gathered from the instrument and such intent be lawful. Furthermore, a construction which gives effect to the will, other things being equal, is to be preferred to one which Tenders it nugatory. These rules are trite. Looking at this will, we see at once that the general idea of the testator was to provide for the support of his wife, and then to give the bulk of his estate to the respondent, or her children, subject to the payment of three legacies, of $200 each, to his other •children. Did he'intend this-entire scheme to fail if his wife’s death preceded his ? We think not. It appears that the will was made in September, 1877; that the testator’s wife died about the year 1884; and that the testator died in November, 1893. Thus it appears that the testator preserved the will for nine years after the death of his wife, .and left it to take effect upon his death. If he intended the entire scheme of the will to depend on his wife’s survivor-ship, it is difficult to explain this conduct. But, from the language of the will itself, we are entirely satisfied that the bequests and devises in question were not intended to be dependent on the fact of the testator’s wife surviving him. 'The bequest in each case is, in the first instance, absolute and unqualified; but it is to be paid by the residuary legatee within one year after the death of the life tenant, if she survive the testator. To our minds it seems certain that these latter conditions, which follow the absolute gift, are not conditions affecting the gift itself, but simply affecting the time of payment. The testator’s purpose was evidently to make it certain that in case of his wife’s surviving him the property should remain .intact during her life, and that the residuary legatee should have a year after the death of the wife to make these payments. If he' desired to make all these bequests contingent on the fact of his wife’s outliving him, he could easily have done so by placing the condition in its natural and logical place, thus, “ If my wife survive me, I gime, etc.,” as was the case in the case of Gibson v. Seymour, 102 Ind. 485, which was much relied on by the appellant. See, also, Tearnshwo’s Appeal, 25 Wis. 23.

2. The court was also right in construing the eighth paragraph of the will as vesting an absolute estate in the respondent. The rule is well settled that where there is a devise to one person in fee, and, in case of his death without issue, to another, the death referred to is death during the lifetime ■of the testator, unless there is language in the will which gives fair, clear, and reasonable ground for saying that the “testator had a different intention. Washbon v. Cope, 144 N. Y. 287; Benson v. Corbin, 145 N. Y. 351.

By the Court.— Judgment affirmed.