Dow v. Hamilton

136 N.W. 333, 150 Wis. 26, 1912 Wisc. LEXIS 186

• Court: Wisconsin Supreme Court
• Decided: May 14, 1912
• Status: Published

Opinions

SibbecKER, J.

The county court and the circuit court on appeal were of the opinion that the testator intended in the fifth clause of the will to include all legacies theretofore named in the second and fourth clauses of the will. The language of the fifth clause clearly refers to all of the testator’s estate, for he says, “In case the proceeds of my estate are not sufficient to pay all of said legacies in full,” then “the shortage shall be borne by all in proportion to their respective legacies.” There certainly can be no question that the legacy to Elizabeth Hamilton, bequeathed in the second clause, was to be paid out of “the proceeds” the testator had in mind when he spoke of “the proceeds of my estate” in the provisions of the fifth clause. This being true, it follows as a matter of course that the phrase in the same sentence, “all of said legacies,” of necessity, refers to and includes all of the legacies referred to in the fifth clause, which he intended should be paid out of “the proceeds of my estate.” These ideas inhere in and are part of the plain and natural signification of the words the testator used in expressing his will in this provision, and hence no occasion is presented for giving them a different meaning, unless it be that other parts of the will necessarily conflict therewith and call for a different interpretation of them. An examination of the other clauses, however, discloses that their contexts are in complete harmony with this meaning of clause 5.

It is, however, claimed that the fifth clause refers only to the class of legatees created by clause 4 and that the contexts of clauses 2 and 4, in connection with their separation in the will by clause 3, as well as the separate provision for his daughter Elizabeth, contained in clause 2, show a clear intent to create two classes of legatees by clauses 2 and 4. But wherein does the context of clause 3, directing the executor to sell testator’s real and personal property and out of the proceeds to pay his debts, expenses of administration, and “the legacies hereinafter named,” evince any intent to restrict the natural meaning of the words employed in clause 5 ? True, the proceeds were to be applied in payment of the legacies created in clause 4, but the legacy in clause 2 must also be paid, and whence, if not out of the proceeds realized on a sale of his real and personal property, referred to in clause 3 ?

Again, it is argued: If it was the testator’s intent to make one class of legatees, why did he create it in two separate clauses ? And it is argued: Would he not with such intent in mind have put them all in clause 4 ? While he might have done so, he chose this different way, and if this, his way, is a proper way, we must respect and follow it. The fact that he chose this form and adopted it to express his will suggests no reason, purpose, or intent to give a meaning to clause 5 different from what the words naturally mean when applied to the facts and circumstances which occupied his mind in making a will.

We are persuaded that the will is plain and unambiguous and that the construction contended for by the appellants is conjectural and would modify the testator’s will so as to change his intention and understanding as expressed therein. It is considered that the county court and the circuit court gave a correct interpretation to the will and entered the proper judgment in the case.

By the Court. — Judgment affirmed.