Morrison v. Hall

238 N.W. 900, 206 Wis. 16, 80 A.L.R. 134, 1931 Wisc. LEXIS 148

• Court: Wisconsin Supreme Court
• Decided: November 10, 1931
• Status: Published

Opinions

Nelson, J.

The vital thing to be ascertained from the will is the- intention of the testator. The will appears to be the result of careful thought and deliberation. It first makes provision for the children of his partner and for all of his heirs at law who were the natural objects of his bounty. He then bequeaths substantial sums to several persons unrelated to him and to several fraternal and civic associations. Ignoring the residuary clause, paragraph thirteenth, the will disposed of less than one half of his estate. It is a will commendable for its apparent fairness and generous benefactions. It was apparently drawn by himself on or about the 12th day of September, 1929 — a little over eight months prior to his death.

The appellants, by their guardian ad litem, earnestly contend that paragraph sixth is unambiguous and clearly expresses an intent on the part of the testator wholly to exclude Eloise Hall as a beneficiary under his will.

Paragraph sixth, standing by itself, alone and apart from the other provisions of the will, is without doubt subject to such a construction. But we must look to the language of the whole will and read it in the light of the circumstances surrounding the testator, in order to discover what was apparently in his mind at the time he made it, and thus ascertain his intention. Donges’s Estate, 103 Wis. 497, 79 N. W. 786; Ohse v. Miller, 137 Wis. 474, 119 N. W. 93; Maxcy v. Oshkosh, 144 Wis. 238, 128 N. W. 899, 1138; Flint v. Wisconsin Trust Co. 151 Wis. 231, 138 N. W. 629; Will of Ehlers, 155 Wis. 46, 143 N. W. 1050; Will of Smith, 165 Wis. 207, 161 N. W. 749; Will of Elmore, 165 Wis. 266, 162 N. W. 438; Will of Read, 180 Wis. 497, 193 N. W. 382. The respondent relies upon the rule established by the foregoing cases and contends that the whole will, interpreted according to the ordinary meaning of the language used and in the light of the circumstances surrounding the testator, discloses beyond a fair doubt that he intended only to exclude Eloise Hall from participating as a specific legatee in order to put her brother and sisters and the other nephews and nieces on a basis of equality with her.

We conclude from a careful examination of the whole will, in connection with the surrounding circumstances, that it should be construed as contended for by the respondent and as construed by the county court, and that it was the intention of the testator to exclude Eloise Hall only as a specific legatee and not as a residuary legatee and devisee. No other reasonable and satisfactory explanation of the studied plan and detail found in the various bequests to all of his nephews and nieces can be suggested. In order that we may ascertain the intention of the testator we must place ourselves in his position at the time he was about to draft his will. He apparently first thought of the children of his partner whom he wished to treat equally with his nephews and nieces. Hfe bequeathed to each of them the sum of $3,000. We may properly assume that his next thought was of his twelve nephews and nieces, his only .heirs at law. He considered them according to his scheme or plan, family by family. He bequeathed to his niece and nephews, “children of Mr. and Mrs. C. W. Johnson,” the sum of $3,000. Then his mind proceeded to the children of his deceased brother, W. J. Stephens, who were in fact his nephew and nieces but who were referred to as “the children of my deceased brother.” To each of them he bequeathed the sum of $3,000. And then he reached for testamentary consideration the members of the Kingston family. Here again he referred to his nieces and nephew as “the children of Mr. and Mrs. W. J. Kingston, deceased,” to whom he gave the sum of $3,000 each. Eloise Hall is a Kingston and daughter of Mr. and Mrs. W. J. Kingston. Because he had theretofore “given her a sum of money out of my (his) estate equal in amount to her share as compared with her brother and sisters,” he gave her “nothing” and said: “I will therefore give her no more.” With the completion of paragraph sixth of the will the nephews and nieces and-the children of his partner were all taken care of so far as the specific bequests were concerned. He then proceeded to make provision for certain of his .friends, his attorney, the Hillside Cemetery Association, the Knights of Pythias for the purpose of endowing a room in the hospital, and the Columbus Park Association.

That it was the desire of the testator to equalize the sum theretofore received by Eloise Hall with the shares given by him to the others seems plain. When we look for the apparent underlying purpose of the testator in making the numerous specific bequests of $3,000 to each of the Morrison children and to each of the nephews and nieces, excepting Eloise Hall, we do not find it unless he was thereby attempting to establish a parity or equality between one who had already received a share of the estate with others who had received nothing. Otherwise he could simply have made specific bequests to those mentioned in paragraphs seventh to tenth of the will and then made the Morrison children and his nephews and nieces, excepting Eloise Hall, equal sharers in his residuary estate. It is evident that the scheme of his will involved some such plan or purpose. It is reasonable to assume that the testator had a reasonably accurate idea as to the amount of money which Eloise Hall had theretofore been given. The record is silent as to the amount of such sum, but it seems quite clear that the sum .which the testator had in min'd was the substantial equivalent of the sum of $3,000 given by him to each of her sisters and brother and to the other nephews and nieces. Manifestly at the time he made his will he did not know and could not know what his residuary estate would amount to at the date of his death when his will would become effective. He therefore could not look forward to the uncertain date of death and calculate, with any certainty, the value of his residuary' estate at the time of his decease, so that he could not intelligently compare the amount theretofore given to Eloise Hall with the amount which each of her sisters and brother would ultimately receive from his estate. He might die leaving little or no property'to which his residuary clause would apply. He might accumulate more property. He might double his estate. It seems unreasopable to assume that the testator, having in mind a reasonably definite sum which he had theretofore given to Eloise, would contemplate equalizing that sum by amounts bequeathed and devised to her brother and sisters which necessarily would be uncertain. We do not think that the mind of the deceased so operated. It is more reasonable to conclude that the testator, at the time he made his will, had in mind a rather definite sum which he had given to Eloise Hall which would be equalized by a bequest of $3,000 to each of her sisters and brother. Having thus equalized the shares of all of his nephews and nieces, he provided in the thirteenth paragraph of his will as follows: “All the rest,” residue, and remainder of my estate, I give, devise, and bequeath to all of my nieces and nephews aforesaid, and also an equal share in such residue and remainder to the children of Mr. and Mrs. E. J. Morrison, the same to be divided among them share and share alike.” The language of the residuary clause is clear and unambiguous. It includes all of his nephews and nieces aforesaid as residuary legatees and devisees. The language of the residuary clause is absolutely comprehensive and plainly includes Eloise Hall — one of his “nephews and nieces aforesaid.” Had he intended to exclude Eloise Hall from his bounty, it obviously would have been a simple matter for him to have said in his residuary clause “all of my nieces and nephews aforesaid excepting said Eloise Hall.”

We need not discuss the various canons of construction which are at times invoked in construing wills, for the reason that, as we view this will, we need no canon of construction except the cardinal or primary one to which all others yield and are subordinate, namely: that the intention of the testator is to be sought in all of the testator’s language and, when ascertained, must prevail.

By the Court. — Judgment affirmed.