163 Wis. 510 | Wis. | 1916
Lead Opinion
The county court and the circuit court both held that the legacy of $4,000 provided for in clause 1 of the will lapsed by reason of the death of Martha M. Ried and became a part of the residuum of the estate of the testatrix.
It does not appear how long before the death of the testatrix Martha M. Ried died. Appellant contends that the intent of the testatrix is clear; that all arbitrary rules of law devised merely as aids to the ascertainment of testamentary intent are not to be applied in cases where the intent of the testatrix can be ascertained from the instrument itself, and cites Ohse v. Miller, 131 Wis. 474, 119 N. W. 93; Will of Ehlers, 155 Wis. 46, 143 N. W. 1050; Donges’s Estate, 103 Wis. 497, 79
Respondent contends tbat tbe gift to the five branches of the family named in clause 9 was not a gift to a class, but was a gift to them as individuals; that therefore 'the provision as to Martha M. Ried lapsed and her share passed to the heirs of Mrs. Waterbury as intestate property, one of whom was human W. Stone, respondent, named as legatee in the second clause, and cites 40 Cyc. 1473, 1474; Fassig’s Estate, 82 Misc. 234, 143 N. Y. Supp. 494; Matter of Kimberly, 150 N. Y. 90, 44 N. E. 945; Lyman v. Coolidge, 176 Mass. 7, 56 N. E. 831; Dresel v. King, 198 Mass. 546, 85 N. E. 77; Matter of Wells, 113 N. Y. 396, 21 N. E. 137; Workman v. Workman, 2 Allen (84 Mass.) 472; Claflin v. Tilton, 141 Mass. 343, 5 N. E. 649; Frost v. Courtis, 167 Mass. 251, 45 N. E. 687; Kimball v. Story, 108 Mass. 382; Horton v. Earle, 162 Mass. 448, 38 N. E. 1135; Wood v. Seaver, 158 Mass. 411, 33 N. E. 587; Sharpless’s Estate, 214 Pa. St. 335, 63 Atl. 884; Parsons v. Millar, 189 Ill. 107, 59 N. E. 606; Mowry v. Taft, 36 R. I. 427, 90 Atl. 815; Murphy’s Estate, 157 Cal. 63, 106 Pac. 230; Page, Wills, § 474.
The claim of the respondent is based largely if not entirely upon the peculiar language of the ninth clause, whereby the residue is divided into five equal shares and one of these shares is assigned to each of the five legatees or groups of legatees therein named. Applying to this language the rule as stated in 40 Cyc. 1474, “where at the time of making a gift the number of beneficiaries is certain, and the share each is to receive is also certain and in no way dependent for its amount upon the number who shall survive, it is not a gift to a class, but to the individuals distributively, and this is generally held to be the case where the beneficiaries are named and their shares are certain,” the respondent arrives at the conclusion that the gift of a fifth to Martha M. Ried was a gift to her individually, and, she having died before the testa
Eules of construction are not to be applied in ascertaining the true meaning of a will if that meaning can be ascertained clearly from the will itself and the surrounding circumstances. Donges’s Estate, 103 Wis. 497, 79 N. W. 786. As was said by this court in Will of Ehlers, 155 Wis. 46, 47, 48, 143 N. W. 1050:
“Much difficulty is liable to occur in initial trials involving the construction of wills by taking some particular adjudications respecting some other wills as controlling, instead of looking to legal principles for guidance, or from following some well known rule for judicial construction as if it were applicable universally, instead of appreciating that, in general, such rules are to be used in choosing between reasonable meanings of substantial equal dignity and keeping prominently in mind that paramount to all others is the rule that the intention of the testator should prevail so far as it can be read out of the language used to express it.”
Beading the will in this ease in the light of all the surrounding circumstances, did the testatrix intend that in the event of the death of any legatee named in the residuary clause prior to the death of the testatrix the share of such deceased legatee should be disposed of as intestate property; or did she intend that all of the residue of her property should be divided among those named in the ninth clause, and in the ■event of the death of any of the residuary legatees named that jthe residue should be divided among those surviving %
A careful reading and study of the will convinces us that ■;he latter was the intention of the testatrix. It was her indention to limit the amount to be received by those named in the first, second, third, fourth, fifth, and sixth clauses and not named in the ninth clause to the amounts specifically bequeathed to them, and it was not her expectation or intention ■■that the amounts specifically bequeathed should be aug¡mented. The fact that by the ninth clause the residuary es
No bill of exceptions was settled. None was required. The question raised is fairly presented by the findings. In our opinion they do not support the judgment.
By the Gourt. — Judgment reversed, and cause remanded with directions to enter judgment in accordance with this opinion.
Dissenting Opinion
(dissenting). I cannot agree with the majority of the court in this case. The residuary clause of the will is clear and specific. It divides the residue of the estate into five equal parts or shares and one of such shares is devised and bequeathed to Martha M. Ried.
The residuary clause does not give the residue to the legatees as a class or as joint tenants. The terms of the residuary clause are clear and unmistakable that one fifth was given absolutely to Martha M. Ried, and, she having predeceased the testatrix, the bequest to her lapsed and became intestate property.
Of course, if there were anything in the will which showed a different intention on the part of the testatrix the cases cited by appellant would be in point. I find nothing in the will which would justify the construction placed upon it in the majority opinion. There is nothing in the will and surrounding circumstances from which an intent can be inferred that the residuary bequest was to a class. There is nothing in the will and surrounding circumstances from which an intent can be inferred that upon the death of Martha M. Ried before the testatrix the bequest to Martha M. Ried should go
In addition to the cases relied upon by counsel for respondent, cited in their brief and referred to in the majority opinion, I cite the following: Will of Allis, ante, p. 452, 157 N. W. 548; Ward v. Dodd, 41 N. J. Eq. 414, 5 Atl. 650; Hand v. Marcy, 28 N. J. Eq. 59; Manier v. Phelps, 15 Abb. N. C. 123. See note collecting cases in 2 Williams, Executors, pp. 822 to 828.
I am authorized to say that Mr. Justice Vinje concurs in the foregoing dissent.
