O'Hearn v. O'Hearn

| Wis. | May 13, 1902

Babdeew, J.

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" court="Wis." date_filed="1900-06-21" href="https://app.midpage.ai/document/morgan-v-mueller-8186688?utm_source=webapp" opinion_id="8186688">107 Wis. 241, 83 N. W. 313. The case is clearly distinguishable from Deery v. McClintock, 31 Wis. 195" court="Wis." date_filed="1872-01-15" href="https://app.midpage.ai/document/deery-v-mcclintock-6601068?utm_source=webapp" opinion_id="6601068">31 Wis. 195. In that case the defendant McClintock set up a paramount title to the lands sought to he partitioned, and the court held that the remedy at law was adequate, and that where the mere legal title was the subject of controversy and in doubt it would not be ¡adjudicated in an action for partition. Here the parties claimed title from a common ancestor. The size of the interest of each depends upon the proper construction to be ,given to the will which attempted to .dispose of the property. The matter of the construction of the will’was of cognizance in equity. The answer having admitted an absolute interest in the plaintiffs in the property, the amount or size of which depends upon the true construction of the will, we think the court had power to settle the controversy. See Tobin v. Tobin, 45 Wis. 298" court="Wis." date_filed="1878-08-15" href="https://app.midpage.ai/document/tobin-v-tobin-6602652?utm_source=webapp" opinion_id="6602652">45 Wis. 298.

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 a will where the context requires it and the devise is not in express terms. It is only admitted as a means of carrying out what the testator appears on the whole to have really meant, but failed somehow to express as distinctly as he should have done. In other words, a gift by implication must be founded upon some expressions in the will from which such intention can be inferred. It cannot be inferred-from an absolute silence on the subject. Nickerson v. Bowly, 8 Met. 424; Schouler, Wills, § 561. The probability of an intention to make the gift implied must appear to be so strong that an intention contrary to that which is imputed to the testator cannot be supposed to have existed in his mind. Bishop v. McClelland, 44 N. J. Eq. 450, 16 Atl. 1.

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" court="Wis." date_filed="1899-06-22" href="https://app.midpage.ai/document/in-re-dongess-estate-8186345?utm_source=webapp" opinion_id="8186345">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" court="Wis." date_filed="1878-08-15" href="https://app.midpage.ai/document/sherwood-v-sherwood-6602668?utm_source=webapp" opinion_id="6602668">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" court="Wis." date_filed="1891-05-05" href="https://app.midpage.ai/document/baker-v-estate-of-mcleod-8183694?utm_source=webapp" opinion_id="8183694">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 does not intend to die intestate as to part of bis property will aid in supporting a gift by implication wben there is anything in the will itself to support it. The fact that a testator has made provision for one of his heirs in the will is not sufficient to justify the presumption that he intended that property otherwise undisposed of should go to other ■heirs in equal shares, in absence of anything in the will to indicate such intention. To allow such a presumption to prevail is to make a will for the testator: This the law does not permit. Bridget and John not having been mentioned in the will, and no words or expressions having been used therein indicating an intent to make them beneficiaries thereunder, their claim and rights depend upon the statute of descent, and their interest is only such as that statute allows. The property undisposed of by the will descended to his heirs in equal shares. This would give the plaintiffs Dennis and Mary, as heirs of their father, each one twelfth, the defendant Bridget one sixth, and the defendant Patrick one sixth, besides the interest he received under the will, or two thirds of the whole estate. The law presumes this to have been his intent from the fact that the testator made no other disposition of the one half of his estate.

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-deuced by bis will, and not to amend or change tbe will in any respect.

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.