Brandeis v. Brandeis
| Decision Date | 07 October 1948 |
| Docket Number | 32442. |
| Citation | 34 N.W.2d 159,150 Neb. 222 |
| Parties | BRANDEIS et al. v. BRANDEIS et al. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. Pertinent facts and circumstances which may be reasonably supposed to have influenced a testator in the making of a will are admissible to aid in the ascertainment of his intention.
2. Surrounding facts and circumstances which are so remote as to permit of only speculation as to the intent of a testator in the making of a will are not admissible.
3. 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 law.
4. Extraneous evidence is admissible for the purpose of construing a will only if there is a latent ambiguity occurring when the language of the will fails to comport with or is in conflict with the facts and circumstances on which the will operates.
5. 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.
6. A bequest in remainder does not lapse on the death of the remainderman if by the will there is designated a substitute or alternate remainderman.
7. Where a will contains a patent ambiguity extraneous evidence is inadmissible for the purpose of explaining its meaning or the intent of the testator and the meaning and intent must be ascertained from an examination of the will and all of its parts.
8. In the construction of a will the generally accepted literal natural, and grammatical meaning must be given to the words used.
9. A will speaks as of the date of the death of the testator.
10. The law favors the early vesting of estates and a remainder will be declared a vested one unless a contrary intent is apparent from the will.
11. If the intention of the testator is clear and a will so indicates an estate may properly pass as of a special time or the happening of a named event to one described as heir without such person being in a technical sense an heir.
12. The rule of law which favors the early vesting of estates is not a rule of prohibition but one of direction of preference.
Kennedy Holland, DeLacy & Svoboda, of Omaha, for appellants.
Flansburg & Flansburg, of Lincoln, and White & Lipp, of Omaha for appellees.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
This is an action which was instituted in the district court for Douglas County, Nebraska, by Walter Brandeis and Loyal B. Cohn, plaintiffs and appellees, against J. L. Ervine Brandeis, and George Brandeis and Karl Louis, Trustees, defendants and appellants, under the Uniform Declaratory Judgments Act for the purpose of having construed a paragraph of the last will and testament of H. Hugo Brandeis, deceased.
The action was commenced by the filing of a petition by plaintiffs which was later amended. The defendants answered the petition. The plaintiffs moved for an order striking parts of the answer which motion was sustained. Thereafter plaintiffs moved for judgment on the pleadings which motion was sustained and a decree was entered applying to the provision of the will in question the construction prayed for by plaintiffs.
The cause comes here on appeal. Error is assigned with respect to the order striking parts of the answer and the decree construing the will.
That portion of the appeal which brings into question the propriety of the order of the district court striking parts of the answer relates itself to the pleadings filed, therefore it becomes necessary to review them and point out their contents herein in considerable detail.
In the petition it is set out, among other things, in substance that on May 16, 1911, H. Hugo Brandeis made a will which contained the following provision:
Lyela Brandeis as indicated by this provision was the wife of H. Hugo Brandeis.
At the time of making his will two brothers, Arthur D. Brandeis and Emil Brandeis, and a sister, Sarah Brandeis Cohn, were living. Emil Brandeis had no children. He was never married. Arthur D. Brandeis had a son whose name is J. L. Ervine Brandeis. He is still living. He also had two daughters but for the purposes of this decision further mention of them is not required. Sarah Brandeis had two sons. They are still living and are known as Walter Brandeis and Loyal B. Cohn. No children were born to H. Hugo Brandeis and his wife. J. L. Ervine Brandeis, Walter Brandeis, and Loyal B. Cohn were the only nephews of the Brandeis blood of H. Hugo Brandeis.
H. Hugo Brandeis died July 21, 1912, at which time he was the owner of 833 1/3 shares of the capital stock of J. L. Brandeis & Sons, a Nebraska corporation. Emil Brandeis had died previously on April 15, 1912. Arthur D. Brandeis died June 10, 1916. Sarah Brandeis Cohn died October 31, 1936. Lyela Brandeis died July 29, 1946.
The plaintiffs alleged that by a proper interpretation and construction and within the true meaning of the quoted provision of the will of H. Hugo Brandeis, J. L. Ervine Brandeis, Loyal B. Cohn, and Walter Brandeis were the lawful male heirs of Emil Brandeis on the death of Lyela Brandeis and that they were and are entitled to take, share and share alike, one-half of the 833 1/3 shares of capital stock and the increase thereof in J. L. Brandeis & Sons, a Nebraska corporation.
They alleged that J. L. Ervine Brandeis claims that the term 'lawful male heirs' as used in the provision of the will relates to lawful male heirs as of July 21, 1912, the date of the death of H. Hugo Brandeis, and that at that date Arthur D. Brandeis was the only lawful male heir of Emil Brandeis, hence on account of the death of Arthur D. Brandeis he became entitled to take in the stead of his father.
They alleged that J. L. Ervine Brandeis has assumed control of the capital stock as though it were his own and has transferred it to George Brandeis and Karl Louis, trustees, reserving for himself the beneficial interest therein. George Brandeis and Karl Louis were made parties defendant as trustees.
The prayer is for an adjudged interpretation and construction of the provision of the will which will conform to the claims made in the petition.
The answer of defendants is of considerable length and nothing need be said with regard to the portion which is in essence a traverse of the issue presented for determination except to say that it presents the contention of J. L. Ervine Brandeis with reference to the provision of the will substantially as it was presented in the petition of the plaintiffs. In it and as a part of it by reference there was parts which were stricken by order of the district court. The propriety of this action, as has been pointed out, has been brought into question by this appeal, therefore it becomes necessary to refer to them.
The parts which were stricken were (1) a paragraph setting out that J. L. Brandeis was the founder and organizer of J. L. Brandeis & Sons, a corporation, the date of incorporation, the capitalization, and the character of the business of the corporation; (2) a part of a paragraph setting out that J. L. Brandeis and his three sons were officers and engaged in the operation of the corporation during the lifetime of each of them; (3) a paragraph setting forth the distribution of the shares of stock on the death of J. L. Brandeis the result of which in the end caused H. Hugo Brandeis to become the owner of 833 1/3 shares of the capital stock, together with Exhibit 1 attached to the petition; (4) a paragraph whereby the will of Emil Brandeis was identified for attachment to and as a part of the answer and wherein the details of the administration of the estate of Emil Brandeis were set out, together with Exhibit 2 attached to the petition; and (5) a part of a paragraph wherein the will of Arthur D. Brandeis was identified for attachment to and as a part of the answer, together with Exhibit 4 attached to the petition.
These portions of the answer were ordered stricken obviously on the ground that they were of no proper benefit to the court in construing the provision of the will of H. Hugo Brandeis.
We think that in all respects, with the possible exception of that part referring to the will of Arthur D. Brandeis, the district court was not in error.
The will of Arthur D. Brandeis will become important in the determination of the right of J. L. Ervine Brandeis to take only if it shall be determined that heirship of Emil Brandeis within the meaning of the questioned provision of the will of H. Hugo Brandeis was the date of the death of H. Hugo Brandeis rather than the date of the death of Lyela Brandeis, since the right, if it exists, of J. L. Ervine Brandeis to take the capital stock of Emil Brandeis in its entirety depends upon the will of his father rather than as an heir of Emil.
In point of fact it was not alleged that H. Hugo Brandeis executed his own will with reference to the wills of his two brothers of either of them or even that he knew of their wills or the contents thereof. As to the other allegations of the answer which were stricken, with the exception noted, nothing is...
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