114 Wis. 428 | Wis. | 1902
1. The answer ip abatement was properly overruled. The only matter in dispute was as to the interest each was entitled to from the common ancestor. The answer admitted that the other claimants had an interest in the land. The only issue presented was as to the size of these interests. We see no reason why the controversy may not be determined in this action. See Morgan v. Mueller, 107 Wis. 241, 83 N. W. 313. The case is clearly distinguishable from
2. The trial court held that plaintiffs and the defendant Bridget took title under the will rather than as heirs-at-law of the father, and adjudged their interests upon that basis. To reach this conclusion he was obliged to hold that a devise arose to them by implication. He admitted that to so hold was perhaps “a greater stretch of implication or inference” than could be found in any of the cases. The will contained no residuary clause. The only persons named in it were his ■wife and the defendant Patrick. There is not a word or a line in it suggesting the existence of his other children. The •will made a devise of the property to his wife for life, and of one half to the defendant Patrick on her death. There is not a hint or a suggestion in it as to the disposition of the other half. One reading the will, without knowledge as to the testator’s family, would conclude at once that as to one-half of his estate the testator died intestate. So far as appears on the face of the will there is absolutely nothing to support the court’s conclusions. The rule upon which a de-wise by implication is based is that it is raised only under
The dominating rule in construing wills is that the intention of the testator is to be ascertained from the words used, in the light of all surrounding circumstances, and that intention given effect. In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786. The court cannot reform the will by changing its language or add provisions not written therein. It can only construe the instrument as written. Sherwood v. Sherwood, 45 Wis. 357. The trial court seems to have lost sight of this fundamental rule. There was no reference in the will to the testator’s other children nor any suggestion that such children were in existence. There was no attempt to dispose of the remainder of the testator’s estate, or any expression used or hint thrown out from which any inference can be drawn as to its disposition. The cases evidently relied upon by the court to sustain his conclusion (Baker v. McLeod’s Estate, 79 Wis. 534, 48 N. W. 657, and In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786), come very far from justifying his judgment. In both cases the court construed the will according to the language used and the intent of the testator as gathered therefrom, in the light of surrounding circumstances. The presumption that a testator
Considerable emphasis is laid upon the language in the opinion in the Donges Case, “that there shall be added to the first paragraph of the will” certain words to complete the actual intention of the testator. The seeming inference is drawn that this court intended thereby to hold that it had power to amend the will by adding words to complete its meaning. All that was intended by the decision in that case was that the will should be so construed as- if the added words had been used by the testator, and that his intention in that regard was clearly apparent from the terms of the instrument itself and the surrounding circumstances. The effort was to carry out the dear intent of the testator as evi-
By the Gowrt. — Tbe order or judgment is reversed, and tbe cause is remanded witb directions to enter an order or judgment fixing tbe rights of tbe parties as indicated in tbe opinion, and for further proceedings according to law.