Willey v. Clark

105 Wis. 22 | Wis. | 1899

The following opinion was filed September 26, 1899:

Martial J.

There was a motion to dismiss the appeal because the notice of appeal was not served on. the clerk of the circuit court by copy, which is denied for the reasons stated in In re Madden’s Will, 104 Wis. 61.

The conclusion that there is a patent ambiguity in the will, and that some portions affected by it must be rejected, can-mot be avoided. No rules known to the law can be successfully resorted to for the purpose of determining what was intended by the language of the second clause of the will bequeathing the undivided real estate to Eliza J. Willey. We-cannot say the intention was that she should have all the real estate not to be divided, under other parts of the will, between two or more parties, because the closing language of the clause shows unmistakably that the word “undivided” refers to property that was to be so divided. We cannot say that the bequest referred to real estate other than that of which the testator was the sole owner, because there was no-such real estate to which the language could apply either at the time of the making of the will or at any other time during the life of the testator. We cannot say, as contended, for by the appellant, that the language can be construed consistent with an intention that the wife should have all the real estate, because by the first clause of the will the testator’s debts were made a charge upon the real estate not given to the wife, and by the last clause the intent is manifest to give to Jobi Annect/r and to the three grandchildren-named an interest in such property. True, estate is mentioned in the last clause, not real estate, but that must be read in connection with the language of the second clause relating to a division of the real estate not given to the wife-. In short, to say that the word “ undivided ” was intended to-carry all the testator’s real estate to the wife, would ignore the whole scheme of the will. The conclusion is arrived at, with a certainty that leaves no ground for reasonable controversy, that the testator intended to give to his wife a portion only of his real estate, and that the word indicating what portion was intended was omitted. It is beyond the power of the court to supply that omission even if there were any way of determining the testator’s purpose. The rule that words may be considered in place, that appear by necessary implication, does not apply. Wills can be construed by courts, not reformed, and the office of construction or interpretation can go no further than to determine the intention of the testator and give that effect to his language-which will come as near such intent as the rules of law and of language will permit. Whatever the intention, unless it can be considered as within the reasonable meaning of the testator’s words, or those necessarily implied, in the light of the circumstances under which they were used, it must fail. As it is said, courts resort to rules of construction and interpretation to get sense out of words,' not to put sense into them. We are not permitted to speculate as to what the testator intended. If that intention cannot be intelligently read out of the language used by the testator, such language must be rejected. Woerner, Am. Law of Administration, § 414; Williams, Ex’rs (6th Am. ed.), 1148 [1078].

The foregoing is in accordance with the decision of the trial court, and therefore the judgment must be affirmed.

By the Oowrt.— Judgment affirmed.

A motion for a rehearing was denied December 15, 1899.