Yeager, J.
This is an action by Loretto McLaughlin, individually, and as executrix of the estate of Edward P. McLaughlin, deceased, plaintiff and appellee, against Helen McLaughlin Heath, Ann McLaughlin Hauptman, and Jane McLaughlin Hudson, defendants and appellants, the object and purpose of which is to have construed the last will and testament of Edward P. McLaughlin and procure a decree quieting title to all of the real estate of which Edward P. McLaughlin died seized in the plaintiff individually.
After joinder of issue the case was tried and a decree was rendered granting all of the relief prayed by plaintiff. Motion for new trial was filed and in due course overruled. From the decree and the order overruling the motion for new trial the defendants have appealed. They assign as ground for reversal that the trial court erred in determining that the plaintiff became the sole devisee of all of the estate of Edward P. McLaughlin, [513]*513deceased, and that the defendants have no interest whatsoever in any of the estate.
It is pointed out here that the plaintiff is the widow of Edward P. McLaughlin and that the defendants are his daughters and daughters of the plaintiff.
The facts relating to this controversy are not in dispute in any material respect. The facts as they appear are that on or about January 16, 1951, the plaintiff and Edward P. McLaughlin executed a will containing, among other provisions not necessary to be repeated herein, the following:
“We, Edward P. McLaughlin and Loretto McLaughlin, husband and wife, of Lancaster County, Nebraska, both being of sound mind and disposing memory, do hereby make our joint and mutual Will in manner and form following, that is to say:
“1. The first to die directs that his or her funeral expenses, just debts and the costs and expenses of administration of his or her estate be first paid.
“2. The first to die hereby gives, devises and bequeaths to the survivor absolutely and forever the remainder of his or her estate, both real and personal, after the payment of the obligations referred to in Paragraph 1 hereof.
“3. On the death of both of the joint makers of this Will, we give, devise and bequeath to our three daughters, Mrs. Arthur H. Hudson, of Lincoln, Nebraska, Helen McLaughlin of Lincoln, Nebraska, and Mrs. Charles M. Hauptman of Lincoln, Nebraska, all our real and personal property of every description and wherever situated, absolutely and in fee simple and to their heirs and assigns forever.”
This is on its face a joint will. Nothing appears in it to indicate that it depended upon any contractual understanding or consideration. There is no contention in the presentation of the parties that it in any wise so depends.
The plaintiff contends that by the paragraph num[514]*514bered 2 she as the survivor of Edward P. McLaughlin, took his estate absolutely and in fee simple free from any claim of the defendants.
The defendants contend that by the paragraph numbered 3 the estate which plaintiff took under the will was limited to a life estate with remainder to the defendants.
The plaintiff contends that paragraph 3 is not a limitation upon paragraph 2 but is a provision for the disposition of the estate of plaintiff and of Edward P. McLaughlin in case of death of the two at one and the same time.
The district court by its decree sustained the contentions of the plaintiff and rejected those of the defendants. A proper resolution of the controversy must be made agreeable to> certain well-established rules for the construction of wills.
One rule is the following: “In the construction of a will, the court is required to give effect to the true intent of the testator SO' far as it can be collected from the whole instrument, if such intent is consistent with the rules of law.” Martens v. Sachs, 138 Neb. 678, 294 N. W. 426, 134 A. L. R. 356. See, also, In re Estate of Pfost, 139 Neb. 784, 298 N. W. 739; Lacy v. Murdock, 147 Neb. 242, 22 N. W. 2d 713; Olson v. Lisco, 149 Neb. 314, 30 N. W. 2d 910; Brandeis v. Brandeis, 150 Neb. 222, 34 N. W. 2d 159.
Another rule is: “Parol evidence is inadmissible to determine the intent of a testator as expressed in his will, unless there is a latent ambiguity therein which makes, his intent obscure or uncertain.” Lincoln Nat. Bank & Trust Co. v. Grainger, 129 Neb. 451, 262 N. W. 11. See, also, Martens v. Sachs, supra; In re Estate of Pfost, supra; Brandeis v. Brandeis, supra; Scriven v. Scriven, 153 Neb. 655, 45 N. W. 2d 760.
Another is: “Where in a will there is a patent ambiguity resulting from the use of words, and nothing appears within its four corners to resolve or clarify the [515]*515ambiguity, the words must be given' their generally accepted literal and grammatical meaning.” In re Estate of Pfost, supra. See, also, Brandeis v. Brandeis, supra.
Another is: “A will speaks as of the date of the death of the testator.” Brandeis v. Brandeis, supra. See, also, Lacy v. Murdock, supra.
Another is: “Extrinsic evidence is admissible to prove that a will contains a latent ambiguity and to explain the ambiguity for the purpose of arriving at the true intent of the testator.” Borah v. Lincoln Hospital Assn., 153 Neb. 846, 46 N. W. 2d 166.
In an approach to the determination of this case it is pointed out that the plaintiff in her presentation here does not contend that the testator could not have by appropriate provision limited the estate to be taken by plaintiff under the language of the will to less than a fee, but only that he did not do- so. On the other hand it is not contended that in the absence of limitation in the will fee simple title would not have passed to plaintiff by paragraph 2. The substantial contention of the defendants is that paragraph 3 is a limitation and that by it the plaintiff took a life estate in the lands of Edward P. McLaughlin rather than a fee simple title thereto.
On the face of the will there is uncertainty as to the intended application of paragraph 3. On its face the declaration is joint as to- disposition of property. The plaintiff urges that by its terms it contemplates that joint application would become effective' only on the simultaneous death of plaintiff and Edward P. McLaughlin.
If that is the proper interpretation, of course in the event of separate death of one or the other of the two, the defendants would never take anything by the terms of the will. After the death of one the survivor would have and possess all of the property of both free from any present or future claims of the defendants. Taken by itself it cannot well be said that the paragraph is [516]*516incapable of this interpretation. It does not however exclude other interpretations.
On the other hand the defendants contend substantially that by the terms of paragraph 3 the two parties in the execution of the will expressed the intention that the property of the first to die should pass to the other for life and that at the death of the survivor it should pass to the defendants. We cannot say that the paragraph is incapable of this interpretation, but it does not exclude other interpretations.
Free access — add to your briefcase to read the full text and ask questions with AI
Yeager, J.
This is an action by Loretto McLaughlin, individually, and as executrix of the estate of Edward P. McLaughlin, deceased, plaintiff and appellee, against Helen McLaughlin Heath, Ann McLaughlin Hauptman, and Jane McLaughlin Hudson, defendants and appellants, the object and purpose of which is to have construed the last will and testament of Edward P. McLaughlin and procure a decree quieting title to all of the real estate of which Edward P. McLaughlin died seized in the plaintiff individually.
After joinder of issue the case was tried and a decree was rendered granting all of the relief prayed by plaintiff. Motion for new trial was filed and in due course overruled. From the decree and the order overruling the motion for new trial the defendants have appealed. They assign as ground for reversal that the trial court erred in determining that the plaintiff became the sole devisee of all of the estate of Edward P. McLaughlin, [513]*513deceased, and that the defendants have no interest whatsoever in any of the estate.
It is pointed out here that the plaintiff is the widow of Edward P. McLaughlin and that the defendants are his daughters and daughters of the plaintiff.
The facts relating to this controversy are not in dispute in any material respect. The facts as they appear are that on or about January 16, 1951, the plaintiff and Edward P. McLaughlin executed a will containing, among other provisions not necessary to be repeated herein, the following:
“We, Edward P. McLaughlin and Loretto McLaughlin, husband and wife, of Lancaster County, Nebraska, both being of sound mind and disposing memory, do hereby make our joint and mutual Will in manner and form following, that is to say:
“1. The first to die directs that his or her funeral expenses, just debts and the costs and expenses of administration of his or her estate be first paid.
“2. The first to die hereby gives, devises and bequeaths to the survivor absolutely and forever the remainder of his or her estate, both real and personal, after the payment of the obligations referred to in Paragraph 1 hereof.
“3. On the death of both of the joint makers of this Will, we give, devise and bequeath to our three daughters, Mrs. Arthur H. Hudson, of Lincoln, Nebraska, Helen McLaughlin of Lincoln, Nebraska, and Mrs. Charles M. Hauptman of Lincoln, Nebraska, all our real and personal property of every description and wherever situated, absolutely and in fee simple and to their heirs and assigns forever.”
This is on its face a joint will. Nothing appears in it to indicate that it depended upon any contractual understanding or consideration. There is no contention in the presentation of the parties that it in any wise so depends.
The plaintiff contends that by the paragraph num[514]*514bered 2 she as the survivor of Edward P. McLaughlin, took his estate absolutely and in fee simple free from any claim of the defendants.
The defendants contend that by the paragraph numbered 3 the estate which plaintiff took under the will was limited to a life estate with remainder to the defendants.
The plaintiff contends that paragraph 3 is not a limitation upon paragraph 2 but is a provision for the disposition of the estate of plaintiff and of Edward P. McLaughlin in case of death of the two at one and the same time.
The district court by its decree sustained the contentions of the plaintiff and rejected those of the defendants. A proper resolution of the controversy must be made agreeable to> certain well-established rules for the construction of wills.
One rule is the following: “In the construction of a will, the court is required to give effect to the true intent of the testator SO' far as it can be collected from the whole instrument, if such intent is consistent with the rules of law.” Martens v. Sachs, 138 Neb. 678, 294 N. W. 426, 134 A. L. R. 356. See, also, In re Estate of Pfost, 139 Neb. 784, 298 N. W. 739; Lacy v. Murdock, 147 Neb. 242, 22 N. W. 2d 713; Olson v. Lisco, 149 Neb. 314, 30 N. W. 2d 910; Brandeis v. Brandeis, 150 Neb. 222, 34 N. W. 2d 159.
Another rule is: “Parol evidence is inadmissible to determine the intent of a testator as expressed in his will, unless there is a latent ambiguity therein which makes, his intent obscure or uncertain.” Lincoln Nat. Bank & Trust Co. v. Grainger, 129 Neb. 451, 262 N. W. 11. See, also, Martens v. Sachs, supra; In re Estate of Pfost, supra; Brandeis v. Brandeis, supra; Scriven v. Scriven, 153 Neb. 655, 45 N. W. 2d 760.
Another is: “Where in a will there is a patent ambiguity resulting from the use of words, and nothing appears within its four corners to resolve or clarify the [515]*515ambiguity, the words must be given' their generally accepted literal and grammatical meaning.” In re Estate of Pfost, supra. See, also, Brandeis v. Brandeis, supra.
Another is: “A will speaks as of the date of the death of the testator.” Brandeis v. Brandeis, supra. See, also, Lacy v. Murdock, supra.
Another is: “Extrinsic evidence is admissible to prove that a will contains a latent ambiguity and to explain the ambiguity for the purpose of arriving at the true intent of the testator.” Borah v. Lincoln Hospital Assn., 153 Neb. 846, 46 N. W. 2d 166.
In an approach to the determination of this case it is pointed out that the plaintiff in her presentation here does not contend that the testator could not have by appropriate provision limited the estate to be taken by plaintiff under the language of the will to less than a fee, but only that he did not do- so. On the other hand it is not contended that in the absence of limitation in the will fee simple title would not have passed to plaintiff by paragraph 2. The substantial contention of the defendants is that paragraph 3 is a limitation and that by it the plaintiff took a life estate in the lands of Edward P. McLaughlin rather than a fee simple title thereto.
On the face of the will there is uncertainty as to the intended application of paragraph 3. On its face the declaration is joint as to- disposition of property. The plaintiff urges that by its terms it contemplates that joint application would become effective' only on the simultaneous death of plaintiff and Edward P. McLaughlin.
If that is the proper interpretation, of course in the event of separate death of one or the other of the two, the defendants would never take anything by the terms of the will. After the death of one the survivor would have and possess all of the property of both free from any present or future claims of the defendants. Taken by itself it cannot well be said that the paragraph is [516]*516incapable of this interpretation. It does not however exclude other interpretations.
On the other hand the defendants contend substantially that by the terms of paragraph 3 the two parties in the execution of the will expressed the intention that the property of the first to die should pass to the other for life and that at the death of the survivor it should pass to the defendants. We cannot say that the paragraph is incapable of this interpretation, but it does not exclude other interpretations.
By the terms of paragraph 3 it is provided that the property of both would pass to the defendants, but we are directly concerned here only with what, if any, of the estate of Edward P. McLaughlin would pass to the defendants. We are concerned only academically with the question of whether or not, if paragraph 3 is a limitation upon the estate contemplated by paragraph 2, the estate which plaintiff had in her own right at the time of her husband’s death would be in anywise affected by the paragraph. We are not -unmindful however of the possibility that what is said herein may have the ultimate effect of declaring the intent of the plaintiff with regard to her own property by what was said in the will.
In Brandeis v. Brandeis, supra, it was said: “Where on the basis of the language employed by a testator a will is capable of more than one interpretation the ambiguity is patent and not latent and extrinsic evidence is inadmissible to aid in its interpretation.”
Since, as pointed out, the provisions of this will are capable of more than one interpretation it becomes necessary to say that it contains a patent ambiguity. It therefore becomes necessary, agreeable to authority cited herein, to ascertain the true intent of the testator from what is contained within the four comers of the will and in so doing to give the words employed their generally accepted literal and grammatical meaning.
From this will it is clear that by the terms of paragraph 2 the only thing attempted was that the survivor [517]*517should have and possess the property of the other. There is nothing in the will anywhere to indicate that this was based upon any kind of mutual promise, agreement, or consideration. No such contention is made by the defendants. It is only in instances where it is contended and the contention is supported by proof which is clear, satisfactory, and unequivocal that a decision may rest on the proposition that the terms and effect of a will depend upon a contract. This is the rule as applied to actions for specific performance and obviously it is applicable in other instances where contractual obligations sought to be enforced are brought into question. Petersen v. Hitchcock, 128 Neb. 381, 258 N. W. 669; Rogers v. Casady, 134 Neb. 227, 278 N. W. 267.
There is nothing in paragraph 3 which in anywise purported to burden the separate estate of the survivor in case one of the parties predeceased the other. There is nothing in it which purported to burden the devised estate in the hands of the survivor. On the face of paragraph 2 the conclusion is inescapable that within legal contemplation the action of the two parties had several as distinguished from joint application.
It is not until paragraph 3 is examined that any phase of joint intention or action becomes apparent. As pointed out the defendants contend that the intent and purpose of this paragraph was to limit the devise of paragraph 2 to a life estate. If this is true, in legal contemplation, in view of the absence of anything to disclose any contractual or mutual action based on consideration in the making of the will, it would not effect a disposition of the estates of both parties at the death of the survivor. Under such circumstances the survivor would of course have full control of the disposition of his or her estate after the death of the first to- die.
It may not be presumed that the parties intended anything less by the will than a full and complete disposition of their separate estates under a condition where, consistent with law, there could be such a full and com[518]*518píete disposition.
The language of paragraph 3 permits without inconsistency and without putting any strain upon it, an interpretative intent the effect of which would be to accept the declared intent and purpose of paragraph 2 and at the same time give effect to paragraph 3 as a full and complete disposiiton of the estates of both of the parties.
This interpretation would have the effect of saying that when the parties used the words “On the death of both of the joint makers of this Will,” they intended to say that if they died at the same time paragraph 3 should provide the mode and method for the disposition of their respective estates. Significantly, it is believed, •in this quoted statement the parties speak of one death but of two parties. Of course words may be employed in different senses, but in the interpretation of a patent ambiguity in a will, as pointed out, the courts must base decisions upon the literal and grammatical meaning of words and phrases as they appear in the will itself.
To accept this interpretation of paragraph 3 does not destroy or burden any of the other provisions of the will. It allows full effectiveness to all of the provisions.
Accordingly the conclusion is reached that the construction contended for by plaintiff has been sustained. In consequence of this the judgment of the district court is affirmed.
Affirmed.