Mitchell v. Mitchell

126 Wis. 47 | Wis. | 1905

Mabstiall, J.

The judgment appealed from must be affirmed on the ground that the plain meaning of the will is that attributed thereto by the trial court. By the second clause-the sum of $500,000 is, in unmistakable words, carved out of' the entire estate of the testator, the residue being bequeathed and devised in trust for the purposes definitely pointed out in the thix'd and fifth clauses, remainder over, as indicated in the fourth clause. The only residue there could possibly be was the $500,000 excepted out of the trust created as afore-’ said. That was therefore necessarily included in the sixth clause,, making Harriet D. Mitchell residuary legatee.

A will is not to be read in the light of rules for judicial construction merely because its meaning is challenged, and the challenge suppoified by reasoning on the assumption that such meaning is obscure. Often obscurity claimed to exist in sucli an instrument is but the mere creation of the mind of the claimant, not one originating with the maker of the paper. The first duty in examining a will for its purpose is to proceed as if it was unambiguously expressed. If, taking the will as a whole in the light of the subjects dealt with, its meaning is plain, there is no legitimate room for judicial construction, and none should be attempted. Holmes v. Walter, 118 Wis. 409, 95 N. W. 380; Johnson v. Pugh, 110 Wis. 167, 85 N. W. 641; Hart v. Hart, 117 Wis. 639, 94 N. W. 890, There is no such room in the will before us.

By the Gourt. — The judgment is affirmed.