Stratton v. Rollings

296 N.W. 608, 236 Wis. 268, 1940 Wisc. LEXIS 357

• Court: Wisconsin Supreme Court
• Decided: November 7, 1940
• Status: Published

Opinions

The following opinion was filed December 3, 1940:

Rosenberry, C. J.

The language of the will upon its face is plain and unambiguous. Evidence was offered upon the hearing with respect to' the names and residences of the surviving heirs and their social relations with the deceased, which was received over the objection of the coadministra-tors. It is considered that the court properly received this evidence.

Appellants contend that under sec. 238.13, Stats., the property should be divided between the nephews and nieces who were living and the issue of those nephews and nieces who are deceased, the latter taking per stirpes and not per capita. They seek to sustain this contention on the ground that the residuary bequest was not a gift to a class for the reason that no words of survivorship were used, relying upon Estate of Bloch (1938), 227 Wis. 468, 469, 278 N. W. 875. In Estate of Bloch, the language of the will was—

“I give and bequeath to my nieces and nephews [naming all seven] the sum of $8,000, to be divided between them share and share alike and to their heirs and assigns forever.”

In the case of Will of Griffiths (1920), 172 Wis. 630, 635, 179 N. W. 768, as well as in Estate of Bloch, supra, the gift was to a number of named persons without words of survivorship. Such a gift was held to be a gift not to a class but to the persons named in the will. These cases have no application to the case at bar where the gift is not to named persons but to persons of a class, to wit, all of the nephews and nieces of the testatrix. In Will of Griffiths, supra, it is said:

“It will be found that in most of the cases when the courts have construed wills to have created classes haying some such effect as is claimed by counsel for the appellants, the bequests have been made to ‘heirs,’ ‘children,’ ‘grandchildren,’ ‘brothers,’ ‘sisters,’ ‘nephews,’ ‘nieces,’ or to some other group of persons without specifically naming the beneficiaries.”

This is the general rule. See cases cited 75 A. L. R. 791. The case at bar falls clearly within the rule, and hence is a gift to a class. Where there is a gift to- a class the members of the class take equally. Appellants argue that the children of the deceased nieces and nephews should take per stirpes. If the grandnieces and grandnephews are included within the term “nieces and nephews,” then the estate must be distributed equally between the members of the class. This would result in each one of the appellants receiving the same amount as each of the surviving nieces and nephews. There is nothing in the will or surrounding circumstances to indicate that the testatrix contemplated or intended any such result.

The appellants argue that although their respective parents died before the execution of the will, nevertheless sec. 238.13, Stats., should apply, and that the descendants of the deceased nieces and nephews should take per stirpes. There are two lines of authority upon the question of whether the statute operates in favor of the descendants of one dead at the time of the making of the will who had he survived the testator would have taken under a gift to a class. It is to be noted that in order to sustain appellants’ contention it is necessary, in effect, to hold that there is a presumption that the testator intended to benefit not only members of a class who might survive him but also the descendants of those who at any time answered to the class description. The decided weight of authority is that under such circumstances there is nothing in the will to indicate a purpose on the part of the testator that the issue of members of a class deceased when the will was made should share in the bounty. It is so held in Georgia, Iowa, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and Washington. See annotations, 3 A. L. R. 1691, and cases cited. The states holding to the contrary are Kentucky and Illinois. We think the majority rule is upheld by the sounder reasoning. Where a person is dead, who, had he lived, would have been a member of the class, has predeceased the testator, the testator has before him all of the facts. If competent to make a will he is presumed to be able to comprehend not only the nature and extent of his property but the relation to him of those who have claims upon his bounty. If in the face of these facts he uses language which is applicable at the time he uses it only to certain persons, how can he be said to intend to include other persons ? A deceased nephew or niece is no longer a nephew or niece. That relationship has been severed by death. It lies in the past.

It is considered that under the circumstances of this case the testatrix intended the residue of her estate to go to her surviving nieces and nephews, and the trial court correctly so held.

By the Court. — Judgment affirmed.