Moore v. Moore

138 Wis. 602 | Wis. | 1909

Siebecker, J.

The effect of the second codicil in connection with 'the third and fourth paragraphs of the will is in dispute between the parties. After making some specific bequests, the testator in the third and fourth paragraphs directed that the residue of his estate should be divided into three parts. One part he devised to his wife, in lieu of dower, homestead rights, and allowances to her as widow; the remaining two parts he devised to his two sons, John and Elmer, '“each the one-third part of my estate,” expressly declaring, “it being my intention . . . that the residue of my estate be divided equally between my beloved wife, Janie, and sons, John and Elmer, each to have one third thereof.” Under these provisions it is clear that the wife and the two sons each obtained a fee interest to a one-third part of the residue of the estate. In the second codicil the testator declares: “I . . . hereby further provide . . . that my son, Elmer Moore, buy out and pay off the others to the extent of their shares so that Elmer will be the owner of the home farm which I value at about $6,000.” The county court held that the testator thereby intended so to modify the will as to give Elmer the right to buy the whole interest in the farm, which was included in the residue of the estate under the third and fourth clauses of the will, thereby to impose on Elmer the burden of paying the widow and John each the one third of its actual value, and by such payment to secure the right to have their interests conveyed to him. The circuit court rejected this view upon the ground that the context of the second codicil showed no intent in the testator to abrogate or restrict the interest in the residue of bis estate devised to bis widow and son John as specified in paragraphs 3 and 4, except as the first codicil concededly modified the will.

The latter view seems to us to express the true intent of the testator. The context of the codicil makes it apparent that he had in mind the provisions in paragraphs 3 and 4 which gave his wife and son John each a one-third interest in the farm, as he declared, “absolutely and in fee.” The language of the codicil is: “that my son, Elmer Moore, buy out and pay off the others to the extent of their shares so that Elmer will be the owner of the home farm which I value at about $6,000.” This clearly evinces that, when he made this codicil, he intended that the widow and each son should each receive and have a one-third interest in the farm, but that he desired Elmer to buy out the interests of the others. It is therefore apparent that Elmer did not receive the farm under the will, but only a one-third interest therein, as did the other devisees. This idea of the testator necessarily negatives the claim that he intended to devise to Elmer the whole farm, but charged • with the burden of devises to the widow and the other son, each of one third of its actual value.

If the testator intended that the whole farm should go to Elmer under the will he could readily, and naturally would, have employed language which would have expressed such an intention. The phraseology employed is not expressive of such an object, but it evinces a desire that Elmer buy out and purchase from the wife and other son the interest in the farm devised to them. This in effect renders the words precatory in their nature, and they are operative only as a recommendation by the testator to his devisees, but they leave compliance discretionary with the parties.

It is furthermore to be observed that the testator fixed no definite value on the farm in case Elmer should buy out the others, leaving it to the parties to place a value on it in the event of snob purchase. Tbe provisions of tbe will show that the testator understood that all should have tbe same interest in and right to tbe land. This gave them mutual and equal rights. Tabor v. Tabor, 85 Wis. 313, 55 N. W. 702; Conlin v. Sowards, 129 Wis. 320, 109 N. W. 91. Tbe terms of tbe codicil, when considered in connection with tbe devises under paragraphs 3 and 4, fail to cut down tbe gifts made in these paragraphs. It is a well-recognized rule that language in a provision of a will is not to be so construed as to cut down a gift made in positive and clear terms in a prior provision, unless it does so by tbe use of words definite in meaning and in positive terms expressive of such an intent. Tbe phraseology of the codicil does not meet this requirement. Tbe language employed does not embody tbe idea that tbe testator intended to cut down or restrict tbe interest in tbe farm given bis widow and son John in paragraphs 3 and 4. Estate of Bellas, 176 Pa. St. 122, 34 Atl. 1003; Clay v. Wood, 153 N. Y. 134, 47 N. E. 274; Bills v. Bills, 80 Iowa, 269, 45 N. W. 748; Estate of Ghanniss, 142 Cal. 1, 75 Pac. 324. We are of opinion that tbe circuit court properly held that under tbe will tbe widow and the two sons took tbe farm in common and that each owned one third thereof absolutely in fee.

Respecting tbe allowance of costs, tbe record discloses nothing to distinguish this case from tbe usual' contest between legatees to litigate and establish rights to a testator’s property under tbe provisions of a will. There is nothing in tbe nature of this contest which calls for exempting the litigants from tbe rules applicable to and governing the right to costs. Tbe circuit court properly awarded costs to the successful party.

By the Court. — Judgment affirmed.