Boerner's Estate, In re

• Decision Date: 03 March 1970
• Docket Number: No. 85,85
• Citation: 46 Wis.2d 183,174 N.W.2d 457
• Parties: In re ESTATE of John B. BOERNER, a/k/a John Boerner, Decd. John A. BOERNER, Appellant, v. Martin J. BOERNER, Exr. of the Estate of John B. Boerner, a/k/a John Boerner, decd., Respondent.
• Court: Wisconsin Supreme Court

Page 457

174 N.W.2d 457

46 Wis.2d 183

In re ESTATE of John B. BOERNER, a/k/a John Boerner, Decd.

John A. BOERNER, Appellant, v. Martin J. BOERNER, Exr. of the Estate of John B. Boerner, a/k/a John Boerner, decd., Respondent.

No. 85.

Supreme Court of Wisconsin.

March 3, 1970.

This is an appeal of a trial court order on a petition for construction of a will, particularly paragraph two, which provides:

'Second, I give and bequeath the securities issued in my name and held for safekeeping by Walter J. Brand & Co., Sheboygan, Wisconsin, to my nephew, John A. Boerner, of Lakewood, California, if living; if not, then to his children in equal shares.'

On March 30, 1964, the testator, John B. Boerner, owned 963 shares of Boston Fund, Inc., a mutual fund. The six stock certificates, evidencing such ownership, were in his possession. On March 31, 1964, he executed an agreement which placed him in a so-called Cumulative Investment Program of Boston Fund, Inc. Under such agreement, future dividends on Boston Fund shares would be automatically reinvested in additional shares of the fund. The agreement, executed with Walter J. Brand & Co., provided for the New England Merchants National Bank in Boston, Massachusetts, as agent of the dealer, to reinvest the dividends in Boston Fund shares. Under the cumulative investment program, the testator was sent regular notices by the bank of dividends accruing and certificates of ownership of shares purchased for him by the bank, the certificates being retained by the bank. As of May 31, 1968, the testator had 260.764 shares of Boston Fund on deposit with the bank in Boston. On May 31, 1968, the testator also had the certificates for the 963 shares of Boston Fund, these being in his possession. Thus his total holding of Boston Fund shares on May 31, 1968 amounted to 1223.764 shares.

On June 29, 1968, the testator purchased an automobile, on which a balance of $2,581.00 was due. On July 1, 1968, the testator withdrew this amount from his savings account. On the same day he notified Walter J. Brand that he wished to 'cash in' the 260.764 shares in the Boston Fund held by the Boston bank. On July 11, 1968, the testator received the proceeds of the sale of such shares, amounting to $2,375.56, which amount he deposited in his savings account. On July 12, 1968, he died.

On August 13, 1968, his will was admitted to probate. On November 6, 1968, the final account in the probate proceedings was filed, and the hearing set for December 3, 1968. The final account excluded the nephew, John A. Boerner, as a legatee under the will, and he filed a petition for construction of the will. The trial court held him to be excluded under the will. Petitioner appeals.

Wayne W. Schlosser, Sheboygan, for appellant.

Methodius J. Anzich, Sheboygan, for respondent.

ROBERT W. HANSEN, Justice.

The executor takes the position that the legacy to the California-based nephew in paragraph two of the will refers only to those shares in the Boston Fund that had been held by the bank in Boston. Since such shares, acquired through dividend reinvestment, had been sold by the bank, the executor argues that the specific legacy to the nephew is adeemed by extinction.

The petitioner contends that paragraph two was intended by the testator and should be construed to refer to all of the shares in Boston Fund owned by the testator at his death. Such contention apparently concedes that the sale by the testator of a portion of his Boston Fund holdings works an ademption by extinction on the part sold, but seeks the award of the remainder of the Boston Fund shares to him. The appeal raises certain definite issues, each made narrow and close by the facts of this case.

APPEALABILITY.

Not briefed nor argued by either party is the question of appealability. Since appealability goes to jurisdiction, ¹ the duty of this court is to independently examine the record to determine if the appeal is proper. ² The appeal is from memorandum decision, and no subsequent order was entered. Probate is a special proceeding, terminated by order rather than by a judgment. ³ Although the better procedure would have been to enter a separate order, the memorandum decision here clearly was intended to be a final ruling, ⁴ so we treat it as an order, and, therefore, appealable.

LATENT AMBIGUITY.

The construction of the terms of a will involves ascertaining the intention of the testator, ⁵ but such intention is to be determined from the words of the document and the surrounding circumstances at the time of its execution. ⁶ Extrinsic evidence, ordinarily inadmissible to determine intent, ⁷ may be offered as to actual intent in cases involving a latent ambiguity, defined by this court to be:

'* * * where the language the will, though clear on its face, is susceptible of more than one meaning, when applied to the extrinsic facts to which it refers.

'There are two classes of latent ambiguity. One, where there are two or more persons or things exactly measuring up to the description in the will; the other where no person or thing exactly answers the declarations and descriptions of the will, but two or more persons or things answer the description imperfectly. Extrinsic evidence must be resorted to under these circumstances to identify which of the parties, unspecified with particularity in the will, was intended by the testator.' ⁸ (Emphasis supplied.)

In the case before us, such latent ambiguity arises from the fact that no securities held by the testator, either at the time of his death or at the time of executing the will, exactly answer the description given in paragraph two of the will. All of the Boston Fund certificates were, of course, issued in his name, but none were, in the words of the will, 'held for safekeeping by Walter J. Brand & Co.' 963 such shares were issued in his name, and were in his safe-deposit box at the time of his death. 260.764 shares, purchased for him by the bank in Boston from the proceeds of dividends, had been held for him by the bank, with periodic statements furnished to inform the testator of the exact amount of such bank-retained shares. Neither his Boston Fund shares held by the bank nor those found in his safe-deposit box exactly answer the description in the will; either or both do so only imperfectly. Which group of shares did the testator intend to refer to when he bequeathed 'securities issued in my name and held for safekeeping by Walter J. Brand & Co.'? Or did he intend to refer to both groups, his entire holdings of Boston Fund shares? Enough of a latent ambiguity exists, in identifying exactly the securities referred to, to warrant the holding of the trial court that extrinsic evidence could be introduced as to the intent of the testator.

INTENT OF TESTATOR.

The issue of admissibility of extrinsic evidence resolved, it becomes important to review the evidence made part of this record relating to the actual intent of the testator in paragraph two of the will. The securities dealer, Walter J. Brand, took the witness stand to testify that the only stocks owned by the testator were his shares in the Boston Fund. He testified that his company never kept stocks for safekeeping for any of their clients or customers. He further testified that it was his belief that the bank in Boston acted for the dealer in all of the shares involved in the cumulative investment program, whether held by the bank or the customer.

The principal witness on the issue as to intent was the attorney who drafted the will. He testified that he was a friend of the testator, that the testator often had done personal favors for him, and that he drafted the will in return for the favors done him by the testator. It was his testimony that the only shares of securities to which the testator referred were the ones specified in paragraph two and, on the direct point involved here, that the testator considered the Boston Fund securities to be one block, not to be two separate groups or blocks. When asked where such Boston Fund scurities, referred to in the will, were located, the attorney answered, 'I can tell you where he thought they were. Walter J. Brand, as stated in paragraph two.' The attorney testified that the testator believed that all of his Boston Fund securities were held by Walter J. Brand. The then recent execution of the agreement with Walter J. Brand & Co., whereby the testator would no longer receive dividends in cash, might well be the basis for the mistaken belief that all Boston Fund shares were with Brand for safekeeping. However, the issue here is not one of credibility as between contradictory testimony or evidence. The evidence as to the intention and beliefs of the testator is uncontradicted. It stands uncontroverted either by other testimony or by physical facts or circumstances. The testimony of the attorney who drafted the will, corroborated in some measure by the testimony of the securities broker, leads to but one conclusion, that the testator intended to bequeath his shares in the Boston Fund to his nephew, all of them and not part of them.

This court has many times said that in a situation of this kind the court must '* * * attempt(s) to place itself in the position of the testator when he made his will, * * *.' ⁹ Doing that in this case requires the conclusion that the testator intended paragraph two to cover his Boston Fund shares, those acquired by purchase and those purchased for him from dividends. The only testimony as to intent present in this record supports this interpretation. There is no testimony to support any other interpretation or conclusion.

CONFIDENTIAL COMMUNICATION.

The executor argues that the attorney...