Battles v. Hackett (In re Pierce's Estate)

• Decision Date: 09 May 1922
• Citation: 177 Wis. 104,188 N.W. 78
• Parties: IN RE PIERCE'S ESTATE. BATTLES v. HACKETT.
• Court: Wisconsin Supreme Court

177 Wis. 104

188 N.W. 78

IN RE PIERCE'S ESTATE.BATTLES

v.HACKETT.

Supreme Court of Wisconsin.

May 9, 1922.

Appeal from Sauk County Court; James H. Hill, Judge.

Proceedings by E. J. Battles, administrator of the estate of M. L. Atkinson, against Davis Hackett, executor of the estate of George W. Pierce, deceased, to construe will of George W. Pierce, deceased. From judgment construing will, the plaintiff appeals. Modified and affirmed.C. M. La Mar, of Baraboo (Richmond, Jackman, Wilkie & Toebaas, of Madison, of counsel), for appellant.

Olin, Butler, Thomas, Stebbins & Stroud, of Madison, for respondent.

JONES, J.

This is an appeal from a judgment construing the will of George W. Pierce, by the administrator of the estate of Mandilla L. Atkinson, deceased, residuary legatee.

The will in question was executed on August 14, 1914. The first five paragraphs provided for bequests to Mandilla L. Atkinson and her daughters as follows: To M. L. Atkinson and Mary Martiny, $500 each; to Emily Wilder, Nellie Getchell, and Fanny Getchell, $200 each. The remainder of the will is as follows:

“Sixth. All the rest, residue and remainder of my estate such as moneys, notes, mortgages, bonds and all other securities whatsoever I give, devise and bequeath to my nephews, nieces and half-brother, to be equally divided between them and their heirs, share and share alike, the child or children of a deceased child taking the share which his, her, or their parents would have taken.

Seventh. All the rest, residue and remainder of my personal property and estate, I give, devise and bequeath to M. L. Atkinson of Delton, Wisconsin.”

The testator died February 20, 1920. His estate consisted of mortgages, bonds and certificates of deposit of the approximate value of $20,000, 50 shares of the preferred stock of the American Radiator Company, of the par value of $5,000, and a few chattels such as a buggy, harness, etc. Deceased had acquired the stock in the Radiator Company subsequently to the making of his will by a bequest from a half-brother, who died June 23, 1917.

It appears that the testator had made his home at the house of M. L. Atkinson for over 60 years. He had never married. His only relatives were the nieces, nephews, and their children, and the half-brother mentioned in the will.

The court found as facts, in addition to those above stated, that it was the intention of the testator to give to M. L. Atkinson $500 and a buggy, harness, and other property of like nature, which testator had owned and which had been in use on the farm where he resided with Mrs. M. L. Atkinson; that after the payment of the specific bequests in the first five paragraphs, it was his intention that all the remainder should pass to the relatives mentioned in the sixth paragraph; and that he also intended, in case of the death of one or more of the members of the class, that the remaining members of the class should take that part which otherwise would have been taken by the deceased in case he had survived the testator. He held as conclusions of law that the sixth clause of the will created a class to be determined as of the date of the death of the testator; that the bequest to the half-brother passed to the members of the class; and that the 50 shares of stock of the American Radiator Company are included in the property described in the sixth paragraph and passed to the members of the class therein created.

[1][2] Against the objection of the appellant the trial court received considerable testimony as to statements of the testator to the scrivener of the will supposed to explain the intention and the real meaning of the will. Among other declarations was one that he intended that the property mentioned in the sixth provision should be divided equally among the surviving legatees in the event that one of them should die. This testimony did not come within the exception that declarations of the testator are sometimes admitted where the language of the will is equally applicable to two or more persons or objects, and the question is which one was intended to be designated in the will. No question of undue influence was involved. It is clear to us that under the circumstances the admission of such testimony was repugnant to the general rule of evidence that the written instrument must be interpreted according to its terms. Wills are formal and solemn documents, often diverting from the natural course of inheritance large estates. They are presumed to have been made after due deliberation, and to express the full and final intention of the testator. Since there would be little security in the right to transfer property by testamentary devise or bequest if the meaning of the will could be changed by the parol declarations of the testator to scriveners or witnesses, the rule should be firmly upheld unless the case comes within one of the recognized exceptions. Estate of Judson, 168 Wis. 361, 170 N. W. 254;Hanley v. Kraftczypk, 119 Wis. 352, 96 N. W. 820;Scott v. Neeves, 77 Wis. 305, 45 N. W. 421;Morgan v. Burrows, 45 Wis. 211, 30 Am. Rep. 717;Dew v. Kuehn, 64 Wis. 293, 25 N. W. 212;Canfield v. Bostwick, 21 Conn. 550;Jackson v. Sill, 11 Johns. (N. Y.) 201, 6 Am. Dec. 363;Massaker v. Massaker, 13 N. J. Eq. 264;Kirkland v. Conway, 116 Ill. 438, 6 N. E. 59. There is language in the decision made by the trial court which seems to indicate that the court was influenced by this testimony.

In the construction of the will one important question is whether the gift to the half-brother was an individual gift, or whether it was part of a single gift to a class consisting of himself and the nephews and nieces, and whether the share of the half-brother passed to the other members of a class or to the general residuary legatee, M. L. Atkinson. The respondent contends that the will should be construed as if the words “my blood relatives” were inserted in the sixth paragraph, and that it was the plain intention that all persons not relatives of the testator should be excluded from taking any of the property mentioned in that paragraph.

[3][4] On the other hand, it is claimed by appellant that the gift to the half-brother is not part of a gift to a class, but an individual gift; that since the legacy lapsed, it passed to the residuary legatee named in the seventh clause. Hundreds of cases were cited and quoted from in the briefs of counsel, from the early English cases as well as modern decisions. These illustrate the infinite variety of cases in which the question has come before the courts, and also the impossibility of declaring any invariable or satisfactory rule by which the question may be determined in particular cases. Of course the controlling purpose is to ascertain the intentionof the testator as expressed in the document to be construed. It is conceded in most of the cases that no hard and fast rule can be laid down for determining whether a will has created a class or classes, and we shall only attempt to point out some of the reasons which lead us to the conclusion...