Breese's Estate, In re

• Decision Date: 02 June 1959
• Citation: 7 Wis.2d 422,96 N.W.2d 712
• Parties: In re ESTATE of Mary BREESE, Deceased. Llewelyn BREESE, Appellant, v. Juliette B. BENNETT et al., Respondents.
• Court: Wisconsin Supreme Court

Page 712

96 N.W.2d 712

7 Wis.2d 422

In re ESTATE of Mary BREESE, Deceased.

Llewelyn BREESE, Appellant, v. Juliette B. BENNETT et al., Respondents.

Supreme Court of Wisconsin.

June 2, 1959.

Rogers & Owens, Portage, for appellant.

Charles J. Drury, Portage, for respondent.

HALLOWS, Justice.

The two issues on this appeal are: (1) does the word issue as used by the testatrix in paragraph 6 of her will include the adopted children of her deceased brother, and (2) whether the testimony of conversations between the testatrix and her attorney, who drew her last will and prior wills, is admissible in evidence to ascertain her intent in the use of the word issue.

In construing a will the purpose of the court is to ascertain the intent of the testator as it is expressed in the full and complete will read in the light of the circumstances surrounding the testator at the time the will was executed. 2 Page, Wills (Lifetime Ed.), p. 804, sec. 918. In re Will of Parker, 1955, 273 Wis. 29, 76 N.W.2d 712, 60 A.L.R.2d 730.

A will, of course, speaks as of the time of the death of the testator, but no change in the circumstances surrounding the testatrix took place between the time of the execution of the will and her death six years later, which have any material bearing on the ascertainment of the intent of the testatrix in this case. Language in a will is used by a testator in reference to known surrounding circumstances. Specific words and phrases used by one testator in view of particular circumstances may have a materially different or at least a different shade of thought content or of meaning than the same phrases or words used by another testator under different circumstances.

Words are but arbitrary verbal or written containers carrying such thought or meaning as is placed therein by their user. The construction of a will by a court is the ascertainment of that content or the meaning of the words, i.e., the intention of the testator. To do this the court attempts to place itself in the position of the testator when he made his will and to consider the use of the words in relation to the surrounding circumstances. In re Will of Ehlers, 1913, 155 Wis. 46, 143 N.W. 1050; see also In re Will of Klinkert, 1954, 270 Wis. 362, 71 N.W.2d 279. In doing so the court is bound by the rules of evidence and various rules of construction. The phrase 'surrounding circumstances' normally does not include conversations the testator had with his attorney unless the words used create an ambiguity in the will and the privileged communications are otherwise admissible.

Whether the adopted children of the deceased's brother in this case are included in the word 'issue' as used by the testatrix is a matter of her intention. In Lichter v. Thiers, 1909, 139 Wis. 481, 488, 121 N.W. 153, 156, this court said:

'Now whether a will in favor of the children of any particular person means adopted children as well as children of the blood of such person, depends upon just what the testator intended, and that may include or exclude adopted children according to circumstances. There is no very arbitrary rule on the subject, except that the testator's intent must govern'.

What were the controlling circumstances surrounding the use of the word issue in the disputed phrase?

'In the event that any of my brothers shall die, then such income shall thereafter be divided between the survivors of them, provided that if any of them shall die leaving issue surviving, the share of the brother so dying shall thereafter be paid to such issue by right of representation. If the issue of any or either of my said brothers shall become extinct during the lifetime of any of my said brothers, the share or shares of the income from such trust previously payable to such issue shall be distributed to the surviving brothers, and the issue, by right of representation, of any brother who shall have died'.

At the time of the use of this language Mary Breese had three brothers living. One brother, Rodney, had a son of his blood and another brother, William, had two adopted children. Llewelyn, the third brother, had no children. Considering the ages of the brothers it was not likely that any of them would have any more children of the blood. By referring to the issue of any brother who should die and the issue of any or either of her brothers becoming extinct the testatrix could only mean to include in the word issue the then adopted daughters of her brother William. This is the only reasonable meaning the word issue can have in the light of the existing circumstances. There is nothing in the will which would indicate the adopted daughters were not meant to be included in the word issue.

It is true that the testatrix had a strong family feeling and was bound by family ties but this is not conclusive, nor does it raise an inference that the adopted daughters were not meant by the use of the word issue. Likewise there is no evidence that ill will existed between the testatrix and the adopted children of her brother which might raise an inference of a motive for excluding such children. All the evidence is to the effect that a friendly and cordial relationship existed between the testatrix and the adopted children of her brother. The use of the word issue under these circumstances does not raise any ambiguity in the will.

This construction is not inconsistent with the plan of the testatrix' estate. The first $160,000 of her estate was given to her three brothers as a class. No provision was made for issue, whether that word is construed as being limited to children of the blood or as including adopted children. The fact that the testatrix gave the corpus of the trust to her nephew and to his issue does not raise an inference that the use of the word issue in the income clause in respect to any or either of her brothers did not include the adopted children of one brother. The language...