Douglas v. Newell

719 P.2d 971, 1986 Wyo. LEXIS 555
CourtWyoming Supreme Court
DecidedMay 16, 1986
Docket85-105, 85-106
StatusPublished
Cited by9 cases

This text of 719 P.2d 971 (Douglas v. Newell) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Douglas v. Newell, 719 P.2d 971, 1986 Wyo. LEXIS 555 (Wyo. 1986).

Opinions

ROONEY, Justice.

Plaintiffs (appellants in Case No. 85-105 and appellees in Case No. 85-106) brought an action for declaratory judgment construing the will of Elizabeth Newell (hereinafter referred to as “deceased”) with respect to the occurrence or nonoccurrence of the ademption of a specific devise contained in Article X of the will, contending that it did not adeem. Defendants (appel-lees in Case No. 85-105 and appellants in Case No. 85-106) presented, as an affirmative defense, a contention that Article X had lapsed at the death of deceased’s husband. Both parties moved for a summary judgment. The trial court granted plaintiffs’ motion on the issue of lapse — i.e., Article X did not lapse — and it granted defendants’ motion on the issue of ademption — i.e., Article X did adeem. Both parties appealed from the judgment.

The unanimous court affirms the decision that Article X had not lapsed, and a majority of the court determines that the specific bequest did not adeem, with which determination I dissent.

Deceased and her husband owned real property in Nebraska and Wyoming. Deceased owned a percentage interest in real property in Converse County as a result of inheritance from a brother. The remaining percentage was owned by other relatives of deceased and of her brother.

A Nebraska attorney prepared wills for deceased and her husband which were executed at Mitchell, Nebraska, on September 19, 1969. Article II of deceased’s will provided in part:

“I give and devise unto my husband, Louis Newell, if he shall survive me, all my real estate and interest therein, where-so-ever situated, except however, any interest I may own in real estate in Converse County, Wyoming, which I inherited from my deceased brother, Frederic S. Read, which is disposed of in Article X of this will * *

Article III thereof provided in part:

“If my husband shall have predeceased me, I devise and bequeath all my property, both real and personal, unto my Trustees * *

The beneficiaries of the trust were the two grandsons of deceased and their issues. In Article X of her will, deceased gave, devised and bequeathed to two nephews and two nieces, three of whom are plaintiffs,

“ * * * all of my interest and title in the real estate located in Converse County, Wyoming, which I inherited from my deceased brother, Frederic S. Read * *

Deceased’s husband did predecease her.

On January 28, 1980, deceased and the other owners of the Converse County property executed a contract for a warranty deed in consideration of payments to be made over a five-year period. Deceased died on May 16,1982. At that time $192,522 was due to her under the contract for deed. Two more annual payments were made under it, but there was a default on the final payment, which payment was due January 15, 1985.

As noted, the ultimate issue in this case is whether or not the disposition of the Converse County property is controlled by Article X of the will. Article X does control if it did not lapse upon the death of deceased’s husband and if an ademption did not occur as to it when the property to which it pertained was sold under the contract for deed. Defendants contend that it did lapse and that Article III controls the disposition of the property. They further [973]*973contend that if Article X did not lapse, the ademption occurred.

LAPSE — CASE NO. 85-106

Both parties seem to recognize that there is an ambiguity in the will and that the construction of the will is to he resolved by determining the intent of deceased as such appears from a full and complete consideration of the entire will when read in the light of the surrounding circumstances. We have recently held such to be the law in In re Estate of Croft, Wyo., 713 P.2d 782 (1986). We need not repeat that which was said there.

Defendants construe Article II of the will as designating the Converse County property as that which should not pass to deceased’s husband in any event; that such direction is not conditioned on the fact that he survive her; that Article X was intended to relate to, and be a part of, Article II, thus being effective only if the husband survived deceased; and that Article III, therefore, disposed of such property. Plaintiffs contend that Article II and Article X are two distinct provisions and that all of the provisions of Articles II, III and X can be given effect only if this distinction is recognized. They argue that defendants’ literal interpretation of Article III would destroy the provisions of Article X.

These contentions evidence the ambiguity. See In re Estate of Lendecke, .79 Wyo. 27, 329 P.2d 819 (1958). Either Article X stands alone in disposition of the Converse County property or Article III disposes of such since deceased survived her husband.

In resolving the ambiguity in this will, we place great weight on the fact that Article III is a general provision whereas Article X is a specific one. In re Estate of Deutsch, Wyo., 644 P.2d 768 (1982).

“ ‘Where there is an inconsistency between a general and a specific provision, the latter will prevail * * * regardless of the order in which it stands in the will, but especially where the specific follows the general.’ ” In re Estate of Len-decke, 329 P.2d at 822, quoting from 95 C.J.S., Wills § 621 at 873 (1957).
“While the will of testator is to be construed as an entirety and all provisions therein are to be rendered consistent with each other, it not infrequently happens that the general intent of testator as deduced from the consideration of the will as a whole, is at variance with a particular direction of some clause. * * In such a case, the court, while avoiding making a will for a man who did not succeed in making one for himself, will, nevertheless, if the general intention of the testator is clear, give effect to such intention, disregarding the particular intent of the particular clause.” 4 Bowe-Parker: Page on Wills, § 30.11 (1961).

We agree with the trial court’s determination that at the time the will was made the original testamentary scheme of distribution and the intent of deceased as expressed in the entire will were to have the real property received by her from her brother pass to plaintiffs under Article X; that the specific provisions in Article X prevail over the general ones in Article III; and that Article X did not lapse upon the prior death of deceased’s husband. URBIGKIT, Justice.

ADEMPTION — CASE NO. 85-105

This court having determined through the opinion of Justice Rooney that Article X of the will did not lapse, the question is pertinent as to whether or not it was subject to ademption by virtue of the disposition of the subject matter of the devise prior to deceased’s death; i.e., whether or not the Converse County property was no longer the property of deceased at the time of her death as a result of the contract for deed.

The interest in question was a 29.17 per cent ranch land ownership inherited by decedent Elizabeth Newell from her brother. That ranch, called the Read lands, was jointly sold by the co-owners by installment contract.

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Douglas v. Newell
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Bluebook (online)
719 P.2d 971, 1986 Wyo. LEXIS 555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-v-newell-wyo-1986.