| Wis. | Jan 7, 1919
The will in this case became inoperative because the legatees named therein predeceased the testator,
The principal question involved here is whether there was an implied revocation of the will. It seems to be well settled at common law that where the legatees all predecease the testator all the provisions of the will lapse and it becomes impliedly revoked. Cleaver v. Cleaver, 39 Wis. 96" court="Wis." date_filed="1875-08-15" href="https://app.midpage.ai/document/cleaver-v-cleaver-6601939?utm_source=webapp" opinion_id="6601939">39 Wis. 96; Koerber v. Patek, 123 Wis. 453" court="Wis." date_filed="1904-11-16" href="https://app.midpage.ai/document/koerber-v-patek-4010642?utm_source=webapp" opinion_id="4010642">123 Wis. 453, 102 N. W. 40; Estate of Sander, 126 Wis. 660" court="Wis." date_filed="1906-01-09" href="https://app.midpage.ai/document/sturner-v-weitemeyer-8188393?utm_source=webapp" opinion_id="8188393">126 Wis. 660, 105 N. W. 1064; Wapello Co. v. Eikelberg, 140 Iowa, 736" court="Iowa" date_filed="1908-10-21" href="https://app.midpage.ai/document/wapello-county-v-eikelberg-7113257?utm_source=webapp" opinion_id="7113257">140 Iowa, 736, 117 N. W. 978.
This rule is modified by our statute, sec. 2289, which provides :
“When a devise or legacy shall be made to any child or other relation of the testator and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will in the same manner as the devisee or legatee would have taken if he had survived the testator unless a different disposition shall be made or directed by the will.”
In the instant case the legatees named in the will were not related to the testator. But it is insisted that the intention of the testator as shown by the terms of the will, in connection with the evidence in the record, shows that the legacies were givén to the legatees, their “heirs and assigns,” hence the heirs of the legatees take.
It is clear under the authorities that the words “heirs and assigns” are merely words of limitation, descriptive of the nature of the estate given to the legatees. Cleaver v. Cleaver, 39 Wis. 96" court="Wis." date_filed="1875-08-15" href="https://app.midpage.ai/document/cleaver-v-cleaver-6601939?utm_source=webapp" opinion_id="6601939">39 Wis. 96; Van Beuren v. Dash, 30 N.Y. 393" court="NY" date_filed="1864-06-05" href="https://app.midpage.ai/document/van-beuren-v--dash-3586022?utm_source=webapp" opinion_id="3586022">30 N. Y. 393, 414, 415; 2 Alexander, Wills, § 774. It follows, therefore, that by the express terms of the will no estate passed to the heirs of John Patterson and Andrew Aitken, legatees, they having predeceased the testator.
It is insisted by appellants that the testator intended that his property should go to the named legatees and in case of their death to their heirs. The language of the will is very
“It is only where uncertainty of sense is clearly apparent, in testamentary as in other instruments, that judicial construction is required or permissible.” Holmes v. Walter, 118 Wis. 409" court="Wis." date_filed="1903-06-18" href="https://app.midpage.ai/document/holmes-v-walter-8187676?utm_source=webapp" opinion_id="8187676">118 Wis. 409, 95 N. W. 380; Mitchell v. Mitchell, 126 Wis. 47" court="Wis." date_filed="1905-10-24" href="https://app.midpage.ai/document/mitchell-v-mitchell-8188303?utm_source=webapp" opinion_id="8188303">126 Wis. 47, 105 N. W. 216; Flint v. Wis. T. Co. 151 Wis. 231" court="Wis." date_filed="1912-11-19" href="https://app.midpage.ai/document/flint-v-wisconsin-trust-co-8190717?utm_source=webapp" opinion_id="8190717">151 Wis. 231, 138 N. W. 629; Will of Owens, 164 Wis. 260" court="Wis." date_filed="1916-11-14" href="https://app.midpage.ai/document/will-of-owens-8192197?utm_source=webapp" opinion_id="8192197">164 Wis. 260, 159 N. W. 906.
In Will of Ehlers, 155 Wis. 46" court="Wis." date_filed="1913-11-18" href="https://app.midpage.ai/document/will-of-ehlers-8191080?utm_source=webapp" opinion_id="8191080">155 Wis. 46, 143 N. W. 1050, relied upon by appellants, after discussing the rule the court said:
“ . . . all in harmony with the rule that the legal intention of the testator is the one expressed by his language, though it may not be exactly the real intention he had in mind, — that his purpose can be given vitality only so far as it can be read reasonably out of the will. . .•
There was no competent evidence offered or received in the instant case sufficient to' show an intention contrary to that expressed by the plain language of the will.
It is further insisted that the court erred in matter of procedure in denying, in the first instance, the will to probate. The point is untenable. It was immaterial in this case whether the will was denied probate on the first hearing in the matter or later. The court had jurisdiction to determine whether the testator died.testate or intestate when the matter was first presented as well as later. Tryon v. Farnsworth, 30 Wis. 577" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/tryon-v-farnsworth-6601006?utm_source=webapp" opinion_id="6601006">30 Wis. 577; Carpenter v. U. S. F. & G. Co. 123 Wis. 209, 101 N. W. 404.
Whether there was any irregularity in not first admitting the will to probate and then determining whether or not there were beneficiaries who would take the property on final settlement, appellants were not prejudiced thereby.
We find no' prejudicial error in the record.
By the Court.- — -The judgment is affirmed, with costs.