160 Wis. 577 | Wis. | 1915
There are no two opinions as to what the testator intended. He purposed recognizing his son Herman by giving him the forty acres of land which was not otherwise disposed of by his will, and to burden it with a legacy of $150 in favor of his daughter Bertha. That he intended to deal ■with the land he did not own, and thereby, practically, disinherit both son and daughter, notwithstanding the careful remembrance of them and all other members of his family, would be too absurd to be seriously thought of. This was the view below; but, — influenced by the observation in the editor’s note in 6 L. R. A. ur. s. 977, to Lomax v. Lomax, 218 Ill. 629, 75 N. E. 1076, that, — “if the will containing the devise . . . contains a complete, accurate description of a tract of land not owned by the testator, and no language whatever pointing in any wise to an intention to devise another tract which he did own, the devise fails, — it cannot be made to apply to a different parcel by extrinsic evidence; but if, anywhere in a will, there can be discovered words connecting the devise . . . with a tract of land that belonged to the testator, or indicative of his intention by such devise to devise a tract of land owned by him, courts will seize upon such
This is a good illustration of the danger of taking, literally, mere expressions sometimes found in law writings, for a guide. That danger is progressive directly as the volume of such writings increases and, perhaps, want of clearness of expression and tendency to follow precedent instead of principle, increases.
In the literal sense, the second quotation above, taken from 14 Ency. of Ev. p. 504, is, at least, very misleading and likewise the first quotation. If either means that the language of a will which is plain in its words cannot be changed in that respect by characterizing circumstances, and the ambiguity solved by reading the instrument in the light of -the entire situation with which the testator dealt, it is wrong. Such a rule would make of law, in many cases, an instrument for perpetrating wrongs instead of one for vindicating rights.
It is useless to try to harmonize the many expressions found in the books in respect to the subject under discussion. There are some well established principles which are of the highest dignity. So far as such expressions do not accord therewith,, they are wrong. The dominant of all such principles is this: The intention of the testator, so far as it can be discovered from his will, must be considered as expressed therein. With that goes all the principles for judicial construction. The basic one of such principles is that judicial construction begins only when uncertainty of meaning arises. With that goes the explanatory principle that, uncertainty of meaning
Our attention is called to Sherwood v. Sherwood, 45 Wis. 357, to support tbe idea that ambiguity in a will cannot be created by reading it in tbe light of circumstances established by extrinsic evidence, nor such ambiguity explained by reading it in the light of like circumstances, but the contrary is the fact. There the distinction. is drawn between reformation and construction, the former not being permissible, as to a will, and the latter just as legitimate as in respect to any other written instrument. There, also, it was held that evidence of the intention of the testator, extrinsic to the will itself, is not admissible for the purpose of explaining, construing, or adding to the terms of a will; “but such intention must be spelled out from the words of the will itself, read in the light of the circumstances surrounding the testator when he made it. In cases where there are inconsistent provisions in the will, evidence of such circumstances is always admissible.” That is in perfect harmony with what we have said.
In view of the foregoing, keeping in mind the fact that, where the intention of the testator is plain, the court may and should go to the uttermost limits of construction authority to discover it expressed in the language used to that end, there does not seem to be any difficulty in reading the will in question as devising forty acres of land to Herman August Boeclc.
That manner of reading a will to carry out a testator’s intention, is so grounded in principle that judicial authorities could only serve to illustrate it. So far as any may he found, seemingly, out of harmony with it, a close scrutiny will, in general, show that the seeming conflict does not exist or was not intended. Such is the fact we think in regard to the language used in Lomax v. Lomax, 218 Ill. 629, 75 N. E. 1076, which efficiently challenged the atte'ntion of the trial court unfavorably to the conclusion we have reached. That is very evident, since in each of the several cases decided before and after it, cited in the brief of counsel for appellant,—Decker v. Decker, 121 Ill. 341, 12 N. E. 750; Whitcomb v. Rodman, 156 Ill. 116, 40 N. E. 553; Felkel v. O’Brien, 231 Ill. 329, 83 N. E. 170; Collins v. Capps, 235 Ill. 560, 85 N. E. 934,—ambiguity was created and explained by applying the language used to the circumstances characterizing the making of the will, and it was construed by regarding words in place which were there by necessary implication.
It may be that cases have been disposed of here where, either in the decisions or discussions leading up thereto, it was not appreciated that in the field for judicial construction and the circumstances under which occasion may arise for such construction, rules are just as broad in respect to wills as other written instruments. The principles have been, perhaps, viewed more broadly and explained in greater detail in 'recent years than formerly. All that makes for judicial efficiency in execution of the purpose for which courts were created, — to prevent and redress wrongs.
By the Court. — The judgment is reversed, and the cause remanded with directions to affirm the judgment of the county court.
