McElligott v. Murray

222 N.W.2d 885, 65 Wis. 2d 440, 1974 Wisc. LEXIS 1276

• Court: Wisconsin Supreme Court
• Decided: October 31, 1974
• Docket: 248
• Status: Published

Opinions

Beufuss, J.

The issues are as follows:

1. In absence of specific language in the residuary clause or any ambiguity in the will read as a whole, and where the residuary legatee dies before the testatrix, may the court receive extrinsic evidence, based upon the circumstances of the case, to determine the probable intent of the testatrix so as to avoid intestacy?

2. Is the anti-lapse statute, sec. 853.27, which presumes a testamentary intent of substitution and legacies to persons who are, but not to persons who are not, related to the testatrix, unconstitutional ?

3. Should the trial court have granted appellant’s request to make an offer of proof ?

4. Should appellant be allowed costs and attorney’s fees out of the estate for both the trial and appeal regardless of the outcome of this appeal?

The principal contention of appellant McElligott is that the residue of Nellie Connolly’s estate should not, by virtue of the fact that the named beneficiary predeceased the testatrix, pass to the heirs at law by intestate succession but should go to the children of the deceased named beneficiary. Such a holding by this court would, contrary to the assertions of the appellant, effect a significant change in Wisconsin law.

Three early decisions by this court might support appellant’s position. In Will of Reynolds (1912), 151 Wis. 375, 138 N. W. 1019; Will of Waterbury (1916), 163 Wis. 510, 158 N. W. 340; and Will of Nielsen (1950), 256 Wis. 521, 41 N. W. 2d 369, this court considered extrinsic circumstances and ruled that the lapsed portions of the residuary bequests did not pass to the legal heirs under the laws of intestacy but were distributable to the other residuary beneficiaries. These cases can be distinguished on their facts from the case at bar but there is no reason to do so because their holdings have been subsequently repudiated by this court.

In Will of Rosnow (1956), 273 Wis. 438, 78 N. W. 2d 750, the testator’s will specifically stated that neither his granddaughter, Noami, nor his son, Leonard, should share in any part of his estate. After giving a specific gift of $500 to a grandson, the will gave half of the residue to a daughter, Meta, and the other half to a son Arthur. Meta had predeceased the testator and the trial court held that her share of the residue should pass as intestate property, some of it thus passing to the specifically disinherited individuals. On appeal, this court affirmed, stating at pages 441, 442:

... No doubt this is not what testator intended, but the only way in which he could vary the rules of descent would be by making an effective gift at variance with these. This he did not do.’ . . .

“We find no escape from the logic of that opinion if we are to refrain, as we ought, from writing a new will for the testator. . . .”

In Estate of Mory (1966), 29 Wis. 2d 557, 139 N. W. 2d 623, the testatrix’s will, after making several specific gifts, left the residue of the estate to three sisters and a brother in equal shares, individually, not as a class. All four of these individuals predeceased the testatrix. The trial court concluded that the testatrix did not intend to die intestate as to any property and stated, “ ‘construing the will as a whole, it is apparent that the testatrix intended that lapsed residuary shares should be distributed to the other residuary legatees and to their issue by right of representation/ ” The trial court thus held that the residue did not pass to all the heirs by intestacy but rather only to the heirs of the deceased residuum legatees by representation. On appeal this court reversed the trial court’s decision and ordered that the property be distributed under the laws of intestate succession. We rejected the approach of Reynolds, Waterbury and Nielsen, supra, and reaffirmed Rosnow, supra, stating that it “laid to rest the confusion found in the early lapsed-legacy cases in determining the intent of the testator.” Mory, page 564. The court concluded at page 565:

“There is nothing in the will to indicate an intent should the residuary gifts lapse. . . [T]he presumption against intestacy is of no effect when the testatrix has provided no indication, by the language used, of her intent in this situation. What she would have provided had she anticipated that all the residuary beneficiaries would predecease her is a matter for conjecture and speculation. For us to presume her intent would amount to judicial will drafting, which we refuse to do.”

In Will of Wehr (1967), 36 Wis. 2d 154, 152 N. W. 2d 868, the will provided for the creation of a testamentary trust, the corpus of which was the residue of the estate. Louise Wehr, Gretchen Wehr, C. Frederic Wehr and Edward R. Wehr were named lifetime beneficiaries of the trust and upon its termination five individuals were to receive $50,000 legacies from the corpus, with the balance being divided equally between an aunt, Clara Gebhardt, and a cousin, Carl Wehr. The will contained the following provision:

“I have heirs at law other than my said brothers Edward and C. Frederic and my said sisters Gretchen and Louise; but I do not consider it necessary to provide herein for any of my heirs at law other than the said Louise, Gretchen, C. Frederic, and Edward.”

Clara Gebhardt died without issue prior to the testator and the question thus arose as to the proper disposition of the portion of the residue intended for her.

In holding that the property should pass by intestate succession to the testator’s legal heirs at the time of his death, even though the will had specifically stated that the testator did not wish to provide for them, this court stated in Wehr at page 179:

“ ‘ In construing a will the purpose of the court is to ascertain the intent of the testator as it is expressed in the full and complete will read in the light of the circumstances surrounding the testator at the time the will was executed. . . .’

a

“However, before these rules of construction may be invoked, there must be language in the will which requires construction. . . . Once such language is found, it then might be proper to resort to extrinsic surrounding circumstances for the purposes of construction. There is no language in William E. Wehr’s will which this court can construe to ascertain testator’s intent as to the disposition of the Gebhardt remainder in the event that it lapsed.”

Rosnow, Mory and Wehr, supra, are controlling in the case at bar. Nellie Connolly’s will gives no indication of any kind as to the intended disposition of the residue of her estate in the event of a lapse. The consistent holdings of Rosnow, Mory and Wehr are that the property must pass to the legal heirs by intestacy, notwithstanding the fact that some of the heirs may have been specifically disinherited. Any other result would amount to judicial will drafting, which this court has refused to do. The traditional refusal of the courts to consider extrinsic evidence as to the testator’s intent, except when there is language in the will subject to several reasonable interpretations, is grounded in strong policy considerations:

“A will is a final and a sacred thing and unless its terms present an ambiguity, we are bound by the instrument itself. . . .

“. . . There would be little security in the right to transfer property by will if the meaning could be changed by parol declarations of the testator to scriveners or witnesses. . . .” Will of Tousey (1951), 260 Wis. 150, 154, 50 N. W. 2d 454. See also: Estate of Breese (1959), 7 Wis. 2d 422, 429, 430, 96 N. W. 2d 712.

The appellant attempts to distinguish Rosnow and Wehr, supra, by noting that they each involved wills with gifts to more than one residuum legatee, only one of which predeceased the testator. The appellant suggests that the holdings in those cases were to prevent the other residuum legatees from getting the lapsed share and that this court follows a contrary rule when only one residuum legatee is named in the will. This is not correct. Appellant cites one case to support his position—Estate of Mangel (1971), 51 Wis. 2d 55, 186 N. W. 2d 276, which is distinguishable from Rosnow, Mory, Wehr and the case at bar. In Mangel, the testator left the residue of his estate “to my beloved wife Irene E. Mangel and to her heirs and assigns forever . . . .” The only reason extrinsic evidence was allowed was to determine whether “and to her heirs and assigns forever” were words of limitation or words of substitution. Thus the distinguishing factor: The court had determined that there was language in the will which was ambiguous on its face.

There is no logical reason why this court should decide, as the appellant intimates we have already done, that a lapsed portion of the residue should pass by intestacy when there are surviving residuum legatees, but hold that there is no intestacy when there is only one named residuum legatee and that legatee has predeceased the testator. The case against intestacy is even stronger in the former situation where there are surviving residuum legatees who are identifiable objects of the testator’s bounty as demonstrated by the will.

The commentators make no distinction between the two situations:

“Except as lapse is prevented by the . . . [anti-lapse] statute, a devise or bequest lapses if the beneficiary dies before the testator. . . .

“. . . If the legacy which lapses is itself part of or the entire residuary legacy, nothing can prevent it from becoming intestate estate and going to the heirs of the testator, even though he has expressly stated in his will that they should have none of his property. ...” 2 MacDonald, Wisconsin Probate Law (7th ed.), pages 337, 338, sec. 15.140.

“. . . If there is one residuary legacy, and such legacy lapses, it passes to the heir or next of kin as intestate property if there is no gift over.

“If the residuum of the estate is given to two or more individually, and not as a class, and the gift to one of them lapses .... [i]t is now settled, by the weight of authority, that a lapsed part of the residuum does not itself pass into the remainder of the residuum, but that it passes to testator’s next of kin as intestate property.” 6 Page, Wills (Bowe-Parker rev.), pages 96, 97, sec. 50.18.

The appellant contends that the will in question is ambiguous because it contains a disinheritance clause and a residuary clause, and argues the presumption is raised that the testator intended not to die intestate. In Will of Wehr, supra, the will contained both of those features, but the court stated:

“Undoubtedly, the lawyer draftsman intended that no part of his client’s estate pass through intestacy. However, such general intention, which hopefully may be attributed in every case to every lawyer who drafts a will, is not enough to warrant a strained construction of the will. . . .” Page 170.

“Mory also makes clear that the intent of a testator not to die intestate, manifested by his insertion of a residuary clause in the will, is not sufficient to effect a gift over of the lapsed portion of a residuary bequest . . . .” Page 178.

The Will of Wehr, supra, cites Rosnow to reaffirm that the existence of a disinheritance clause will not prevent a lapsed gift from passing by intestate succession in the absence of a gift over, even if the disinherited heirs will thus take.

It is next urged that the instant will creates a “gift by implication” of the residue to the children of Margaret McElligott. The appellant refers to language from Estate of MacLean (1970), 47 Wis. 2d 896, 405, 406, 177 N. W. 2d 874:

“The doctrine of a gift by implication does not result in a reformation of a will or correct an obvious mistake or an oversight by the draftsman. It is the ascertainment of the intention of the testator from all the words used in the will in the light of surrounding circumstances to fill in a void or an omission in the expressed terms of the will. Unless the clue to the intention is imbedded in the words of the will, the court cannot imply the gift to fill the ellipsis. . .

In this case there is clearly no language in the will which would indicate that the testatrix intended Margaret Mc-Elligott’s children to take in the event she predeceased the testatrix. As stated in 4 Page, Wills (Bowe-Parker rev.), pages 119, 120, sec. 30.18:

“Since the courts endeavor to ascertain the intention of testator from his whole will rather than disjointed parts thereof and to enforce this intention if lawful when thus ascertained, it follows that it is possible for testator to dispose of property, not by any formal disposition in his will, but by necessary implication from his will taken as a whole. The presumption is very strong, however, against his having intended any devise or bequest which he has not set forth in his will. There must be a probability arising from the whole will that testator intended to make the bequest or devise, which he has not set forth expressly, so strong that it cannot be supposed that any other intention existed in the mind of testator.

“This intention must appear from the language which is used in the will. The fact that testator makes no specific provision for the case which has arisen, or that subsequent changes make it quite likely that he would have made a provision if he had thought that they would happen, does not justify the court in construing the will so as to make a gift by implication. . . .”

We conclude that this case does not present a proper instance for application of the doctrine of “gift by implication.”

Finally, appellant urges this court to adopt what he refers to as “the doctrine of probable intent,” which would allow a court to receive extrinsic evidence, irrespective of the presence or absence of an ambiguity, to ascertain the likely intention of the testator. The minority of courts that apply this doctrine, “ ‘. . . [s]o far as the situation fairly permits. . . ascribe to the testator, “those impulses which are common to human nature, and . . . construe the will so as to effectuate those impulses.” ' ” In re Estate of Burke (1966), 48 N. J. 50, 63, 222 Atl. 2d 273. As further stated by that court, page 64:

“. . . While a court may not, of course, conjure up an interpretation or derive a missing testamentary provision out of the whole cloth, it may, on the basis of the entire will, competent extrinsic evidence and common human impulses strive reasonably to ascertain and carry out what the testator probably intended should be the disposition if the present situation developed.

“This positive approach has particular significance in the case, as here, of an unprovided for contingency causing a failure in the complete disposition of the residue. . . .”

The adoption of this doctrine would open a great many wills to attack by disappointed relatives or friends of the deceased and would interject an element of uncertainty and lack of finality into the process of testamentary disposition. While the doctrine does have a certain attractiveness, in cases, as here, where an unforeseen consequence will result in the lapse of a residual gift and the distribution of such property, through intestate succession, to legal heirs whom the testator had specifically attempted to disinherit, the adoption of such a principle would require the reversal of a substantial body of Wisconsin case law.

This court, however, did modify the strict rule of disinheritance in Estate of Farber (1973), 57 Wis. 2d 363, 368, 204 N. W. 2d 478, by stating:

“. . . In those cases where the intent to completely disinherit a certain heir or group of heirs is expressed beyond doubt, as evidenced by positive language stating which heirs are to take, and if any such heirs remain to take, the clearly expressed intention of the testator shall be recognized. . . .”

In that case testatrix had stated in her will, “. . . [I]t being my intention that all my estate shall be inherited by those above named, kindred of the whole blood, and that none shall go to my brothers and sisters of the half blood. . . .” When a gift lapsed, this court applied the rule stated above and refused to allow it to pass by intestacy to all the heirs, but only to those of the full blood. The court carefully pointed out at page 368:

“. . . However, we would emphasize that words of disinheritance or negative exclusion alone are not sufficient to prevent an heir at law from taking intestate property. ...”

Adopting the “doctrine of probable intent” in this case would go a step beyond the Farber rule and would allow a court to independently ascertain the intent of the testator absent any language in the will which would be of guidance. Such a rule would bear the unpleasant appellation “judicial will drafting,” and would contravene the holdings in Rosnow, Mory and Wehr, supra. We believe the majority rule as stated in Rosnow, Mory and Wehr is the better rule and decline to adopt the “doctrine of probable intent” as proposed by the appellant.

The appellant contends our anti-lapse statute is unconstitutional insofar as it excludes nonrelated persons upon the ground that the right to take property by inheritance or will is a natural right protected by the constitution which cannot be taken away or substantially impaired by the legislature.

Sec. 853.27, Stats., the anti-lapse statute, provides in pertinent part:

“Rights of issue of beneficiary dying before testator (lapse). (1) Unless a contrary intent is indicated by the will, if provision in the will is made for any relative of the testator and the relative dies before the testator and leaves issue who survive the testator, then the issue as represent the deceased relative are substituted for him under the will and take the same interest as he would have taken had he survived the testator.”

If Margaret McElligott had been a relative of Nellie Connolly, the effect of this statute would have been that Margaret’s children would have taken the residue of the estate. Appellant contends that the self-contained limitation of the statute’s application to relatives is unconstitutional. His basis for this contention is a statement made by this court in Nunnemacher v. State (1906), 129 Wis. 190, 197, 108 N. W. 627:

“. . . the right to take property by inheritance or by will is a natural right protected by the constitution, which cannot be wholly taken away or substantially impaired by the legislature.”

It is obvious that the statute does not interfere with an individual’s right to leave his property to whomever he pleases. Appellant recognizes that the anti-lapse statutes of this or any other state have never been held unconstitutional and that the court in Nunnemacher, supra, stated at page 202:

“It is true that these rights are subject to reasonable regulation by the legislature; lines of descent may be prescribed, the persons who can take as heirs or devisees may be limited, collateral relatives may doubtless be included or cut off, the manner of the execution of wills may be prescribed, and there may be much room for legislative action in determining how much property shall be exempted entirely from the power to will, so that dependents may not be entirely cut off. These are all matters within the field of regulation. . . .”

Still appellant persists in his contention; he suggests that the statute denies equal protection in that it arbitrarily and unreasonably creates two classes of beneficiaries. The classification is entirely reasonable and well-founded in public policy. It is not unreasonable to presume that, unless otherwise provided, the issue of relative-beneficiaries are objects of the testator’s bounty and affection. Such a presumption in the case of nonrelated strangers to the will, however, would be unrealistic. We conclude the anti-lapse statute as written is not unconstitutional.

The appellant also assigns as error the refusal of his offer to show the intent of the testatrix.

In State ex rel. Schlehein v. Duris (1972), 54 Wis. 2d 34, 39, 194 N. W. 2d 613, the court said:

“In most instances the trial court should permit an offer of proof either in question and answer form or by a statement of counsel, in the record, of what he believes the testimony would show. . . . However, we believe that there are exceptions to this general rule and in those instances offers of proof can be refused in the exercise of judicial discretion. A trial judge need not, in fact should not, permit offers of proof as to matters that are clearly immaterial, irrelevant, without proper foundation or by incompetent witnesses.”

In this ease the trial court properly excluded the testimony or evidence offered by the plaintiff to prove the intent of the testatrix upon the ground that it was immaterial and irrelevant. Clearly, the rule is that extrinsic evidence cannot be received to determine the intent of the testator unless, from a reading of the entire will, an ambiguity appears in the will itself.¹ There is no ambiguity in Nellie Connolly’s will.

The appellant requests, regardless of the outcome of this appeal, that all the parties be allowed costs and reasonable attorneys’ fees both at the trial level and upon appeal. In support of this request he cites Estate of MacLean, supra, where we stated at page 408:

“In the event of affirmance, the appellants asked that their attorney’s fees and disbursements be paid out of the corpus of the trust as the attorneys for the executor and the two churches were. We agree. The costs and reasonable attorney’s fees of all parties to this appeal at the trial level and on appeal should be paid out of the estate. The appellants raised and were successful on an important question worthy of our consideration and a construction of the will was made by this court. See Uihlein v. Uihlein (1960), 11 Wis. 2d 219, 105 N. W. 2d 351, and Davis v. Davis (1907), 132 Wis. 54, 111 N. W. 503, 111 N. W. 1129.”

In the Uihlein Case, supra, this court held at page 230:

“In Davis v. Davis (1907), 132 Wis. 54, 111 N. W. 503, 111 N. W. 1129, which involved an appeal in an action for construction of a testamentary trust, this court directed that the costs of appeal be paid out of the estate inasmuch as the appeal was taken in good faith and the questions presented were worthy of presentation to this court. We deem that such case is sufficient precedent for us to direct that the costs of all parties to this appeal be paid out of the trust estate because there is no question but that all parties to this appeal acted in good faith and the question presented is worthy of our consideration. Such costs shall include reasonable attorney fees. . . .”

We have no hesitancy in believing that both the action in the trial court and this appeal were brought in good faith; and that the issues presented were worthy of presentation to the trial court and this court and laudably presented. Further, the equities of the McElligott children are equal to or superior to those of the distant-and unknown heirs of the testatrix. However, we have concluded we have no authority to order this allowance by virtue of the controlling statutes and our prior cases.

The statutory provisions relating to the awarding of costs and attorney’s fees are:

“879.33 Costs, when, allowed; judgment for. Costs may be allowed in all appealable contested matters in probate court to the prevailing party, to be paid by the losing party or out of the estate as justice may require; and when costs are allowed they shall be taxed by the register in probate after the notice required in ch. 271. When costs are allowed, the court shall render judgment therefor, stating in whose favor and against whom rendered and the amount, and a list of the items making the amount shall be filed with the papers in the ease. Costs shall not be taxed against a guardian ad litem, except as provided in s. 271.14.”

“879.37 Attorney fees in contests. Reasonable attorney fees may be awarded out of the estate to the prevailing party in all appealable contested matters, to an unsuccessful proponent of a will if he is named as an executor therein and propounded the document in good faith, and to the unsuccessful contestant of a will if he is named as an executor in another document propounded by him in good faith as the last will of the decedent.”

The appellant here was not a successful litigant, either in this court or the trial court, nor was he named executor in the will admitted to probate or any other will of Nellie Connolly. He is not, therefore, legally eligible to an award of his costs and attorney’s fees from the corpus of the estate.²

There is, however, one statute or rule of court that can afford the appellant some relief. Sec. 251.23, Stats., states:

“251.23 Costs in supreme court. (1) Discretionary items. In the supreme court, excepting criminal actions, costs shall be in the discretion of the court. In any civil action or proceeding brought to the court by appeal or writ of error, the prevailing party shall recover costs unless the court shall otherwise order, and such costs, unless fixed at a lower sum by the court, shall be as follows : The fees of the clerk, $59 attorney’s fees, the fees of the clerk below for transmitting and certifying the record, including the sum paid for necessary copies of the minutes of the reporter procured for record preparatory to an appeal or for approval of the transcript, and the sum paid for printing appendices and briefs, not exceeding $3 per page and in all not exceeding 150 pages.”

Upon the authority of this statute, and for the reasons stated above, in the exercise of our discretion we determine that no appeal costs shall be taxed by either party.

By the Court. — Order affirmed; no costs to be taxed.

1 Will of Rosnow, Estate of Mory and Will of Wehr, supra.

2 See Estate of Alburn, (1964), 23 Wis. 2d 386, 127 N. W. 2d 56; Estate of Phillips (1940), 236 Wis. 268, 294 N. W. 824, 296 N. W. 608.