Williams v. Parsons, 172 Wis. 630

Williams v. Parsons

172 Wis. 630 | Wis. | 1920

Jones, J.

It is claimed by the appellants that the will gave to the wife the entire estate for her support, comfort, and enjoyment, and that any portion remaining after her death was to be divided among those who constituted a testamentary class; that there was no present gift, the gift being merely implied from the direction to divide; that the members of the class were to be ascertained when the time came for division; and that only those then surviving could share.

It is claimed by respondent that the will did not create a testamentary class; that it contains words of present devise; and that the interest of each of the eight beneficiaries named vested at the testator’s death, and upon the death of such beneficiary either before or after that of the testator passed to the personal representatives of the beneficiary, to be paid on the death of the testator’s wife.

In this case we must seek to ascertain the intent of the testator from the language of the will alone, since no proof was given of surrounding facts or extrinsic circumstances. It would be a vain attempt to speculate as to what the testator would have caused to be written into his will if he could have foreseen the contingencies which have happened. If he could have foreseen the events to occur within the thirty-three years following the date of his will it probably would have been a very different document. Hence in interpreting the will we must be governed not by his supposed intent alone, but by that intent as in the will expressed.

The real meaning of the instrument is the sovereign guide, and, since every will differs in some respects from every other, it is a familiar principle that precedents and rules of construction are less helpful than in construing *635other writings which, owing to statutes or custom, are far more uniform. Said Judge Story in 1832 in discussing the construction of wills: “The cases almost overwhelm us at every step of our progress; and any attempt even to classify them, much less to harmonize them, is full of the most perilous labor.” Sisson v. Seabmy, 1 Sumn. 235, 239. The difficulties have been by no means diminished by the innumerable volumes of the law reports which have since been added to our legal literature.

In their contention that the entire residue of the estate should go to the surviving sister, of testator’s wife, appellants’ counsel rely largely on their claim that the will created a testamentary class consisting of such of the brothers and sisters of testator and his wife as are named in the will and who should be living on the death of his wife, and that it was the intent of the testator that the residue should be equally divided between the members of this class. The argument is that the estate could not vest until the death of the widow, because the persons constituting the class could not be ascertained until that time and the division could only be made among those then living.

There seem to us serious objections to such a construction of the will. In the document there appear two dominating purposes: first, that of giving ample protection to his wife who had aided him in accumulating his estate; second, that of giving the residue to the eight beneficiaries designated in the will by name.

It will be found that in most of the cases when the courts have construed wills to have created classes having some such effect as is claimed by counsel for the appellants, the bequests have been made to “heirs,” “children,” “grandchildren,” “brothers,” “sisters,” “nephews,” “nieces-,” or to some other group of persons without specifically naming the beneficiaries. While the fact that the testator specified the names of the beneficiaries in this case may not raise a conclusive presumption that it was not his intention to *636create a testamentary class, we regard it as a strong circumstance tending to that conclusion in the absence of language more clearly describing a' class.

In this will there were no words of survivorship as between the eight beneficiaries. This Seems to us a very significant fact bearing on its. construction.' In the very clear opinion of the trial judge, and in respondent’s brief as well, it is stated in substance that no case in Wisconsin had been cited or found where the beneficiaries were specifically named and fixed in number, as in this case, where •it was held that a class was created unless words of survivor-ship were used. In appellants’ brief Will of Waterbury, 163 Wis. 510, 158 N. W. 340, is relied upon as supporting their contention. ' But in this case the court came to the conclusion, in the light of all' the surrounding circumstances, that it was the intention of the testatrix to limit the amount to be received .by those named in other clauses of the will to the amounts specifically bequeathed’ to them, and that, irrespective of whether or not the residuary legatees con- ■ stituted a class, it was. the intention to confine the distribution of the residue to them. Hence it would seem that this case was not based on the creation of a class. Counsel for appellants cite as bearing on this or other branches of the case Albiston’s Estate, 117 Wis. 272, 94 N. W. 169; Moran’s Will, 118 Wis. 177, 96 N. W. 367; Patton v. Ludington, 103 Wis. 629, 79 N. W. 1073; Benner v. Mauer, 133 Wis. 325, 113 N. W. 663. 'But in all these cases the wills contained words of survivorship. It is our conclusion that no testamentary class was created by the will which postponed the final vesting of the rights of the beneficiaries.

It is argued by appellants’ counsel that there are no words of present gift in the residuary clause and that it is simply a direction to divide the property remaining after the wife’s death. They rely on Cashman v. Ross, 155 Wis. 558, 145 N. W. 199, in which it was held, thére being no words of present gift, that where property under a will is to be divided *637among a class only, those thereof who are alive at the time of the division can take under the will in the absence of other provisions to the contrary. Counsel also rely on the Albiston Case, supra, and the Benner Case, supra; but in these cases there were words of survivorship indicating uncertainty as to the persons who should take at a specified time. In the present case no class is created, 'no words of survivorship are used. The word “bequeath” is certainly in the present tense. Respondent’s counsel claim -that the meaning of the language is, I' will and bequeath whatever shall remain after my wife’s death to Ellen Williams, Richard Griffiths, William Griffiths, David Griffiths, Elisabeth Williams, Mary Edwards, Ellen Jones, and John R. Jones' share and sháre aliké.

Whether this is thfe correct interpretation or not, the •claim for. vesting on the testator’s death seems strongly supported' by'several decisions of this court where there were' no words of • present devise and where there was direction' for future division. It seems well settled that a mei'e direction 'to divide after 'a life estate does not prevent a present grant or postpone the vesting beyond the-death of the testator. Smith v. Smith, 116 Wis. 570, 93 N. W. 452; Cowley’s Will, 120 Wis. 263, 97 N. W. 930, 98 N. W. 28; Patton v.. Ludington, 103 Wis. 629, 79 N. W. 1073; West v. Andrews, 166 Wis. 509, 166 N. W. 31; Will of Reynolds, 151 Wis. 375, 138 N. W. 1019.

In construing the will it seems to us of some importance that the event on which division should be made, namely, the death of testator’s wife, was one sure to happen. It was not such an uncertain event as when one or more should reach majority or marry, so often mentioned in wills. The future event on which division'is made is nothing personal or related to the legatees, but' merely the ceasing of a life estate created by the will. There appears no' reason for 'the postponement of the division* except the certain protection of the wife during her life.

*638It is argued by appellants’ counsel that the construction given the will by the trial court will cause much inconvenience, since there are many persons among whom the estate would have to be distributed. We do not consider that the construction to be placed upon the will should be affected by subsequent events. v

We are disposed to construe the will as making a present gift, only postponing the time of enjoyment; and to hold that the element of futurity was annexed to the time of payment and not to the substance of the gift. In so holding we are supported by the rule of construction that in doubtful cases the law leans in favor of an absolute rather than a defeasible estate and favors an early vesting of estates. The rule is too familiar to require citation of authorities.

It is argued by appellants’ counsel that since only one of the legatees took an appeal from the county court, only that party in any event could have the benefit of a reversal of the judgment. The proceeding for the construction of the will was brought by the administratrix de bonis non for the benefit of all the persons interested, and it was alleged in the petition that the proceeding was necessary in order to obtain a proper distribution of the estate. In this proceeding she represented all the legatees and their representatives. Cowan v. Beans, 155 Wis. 417, 144 N. W. 1129. If the will had been differently construed by the county court it would have been proper for her to take an appeal, if so advised by competent counsel. When another party appealed to the circuit court, the administratrix still represented not only her own interests but the interests of all persons concerned. When she appealed to this court she acted in the same capacity. If the judgment of the circuit court were reversed the entire estate would go to Elisabeth Williams, another party to the action, an appellant and the only surviving legatee.

In the proceeding to construe the will the court obtained jurisdiction not only to determine its meaning but to direct *639the administratrix de bonis non as to her duties in the distribution of the estate. We do not consider that this jurisdiction has been lost by the fact that some of the many parties interested did not appeal from the judgment of the. county court.

It follows that the judgment of the circuit court is affirmed except in one particular. . It appears from the record that Richard, one of the legatees, predeceased the testator and left two children surviving him. Under the terms of the statute, sec. 2289, the share of Richard should go to his issue.

By the Court. — Judgment modified as indicated in the opinion, and as so modified is affirmed, with costs in .this court to both parties to be paid by the estate..