Connolly's Estate, In re

• Decision Date: 31 October 1974
• Docket Number: No. 248,248
• Citation: 222 N.W.2d 885,65 Wis.2d 440
• Parties: In re ESTATE of Nellie J. CONNOLLY, Deceased. William C. McELLIGOTT, Appellant, v. Milton T. MURRAY, personal representative of the Estate of Nellie J. Connolly a/k/a Nellie Connolly, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 885

222 N.W.2d 885

65 Wis.2d 440

In re ESTATE of Nellie J. CONNOLLY, Deceased.

William C. McELLIGOTT, Appellant, v. Milton T. MURRAY, personal representative of the Estate of

Nellie J. Connolly a/k/a Nellie Connolly, et al.,

Respondents.

No. 248.

Supreme Court of Wisconsin.

Oct. 31, 1974.

William C. McElligott appeals.

Honeck, Mantyh & Arndt, Milwaukee, for appellant.

Robert E. Lutz and Ralph W. Raasch, Milwaukee, guardian ad litem for Delores Dahme, and others.

BEILFUSS, Justice.

The issues are as follows:

1. In absence of specific language in the residuary clause or any ambiguity in the will read as whole, and where the residuary legatee dies before the testatrix, may the court receive extrinsic evidence, based upon the circumstances of the case, to determine the probable intent of the testatrix so as to void intestacy?

2. Is the anti-lapse statute, sec. 853.27, which presumes a testamentary intent of substitution and legacies to persons to are, but not to persons who are not, related to the testatrix, unconstitutional?

3. Should the trial court have granted appellant's request to make an offer of proof?

4. Should appellant be allowed costs and attorney's fees out of the estate for both the trial and appeal regardless of the outcome of this appeal?

The principal contention of appellant McElligott is that the residue of Nellie Connolly's estate should not, by virtue of the fact that the named beneficiary predeceased the testatrix, pass to the heirs-at-law by intestate succession but should go to the children of the deceased named beneficiary. Such a holding by this court would, contrary to the assertions of the appellant, effect a significant change in Wisconsin law.

Three early decisions by this court might support appellant's position. In Will of Reynolds (1912), 151 Wis. 375, 138 N.W. 1019; Will of Waterbury (1916), 163 Wis. 510, 158 N.W. 340, and Will of Nielsen (1950), 256 Wis. 521, 41 N.W.2d 369, this court considered extrinsic circumstances and ruled that the lapsed portions of the residuary bequests did not pass to the legal heirs under the laws of intestacy but were distributable to the other residuary beneficiaries. These cases can be distinguished on their facts from the case at bar but there is no reason to do so because their holdings have been subsequently repudiated by this court.

In Will Rosnow (1956), 273 Wis. 438, 78 N.W.2d 750, the testator's will specifically stated that neither his granddaughter, Noami, nor his son, Leonard, should share in any part of his estate. After giving a specific gift of $500 to a grandson, the will gave half of the residue to a daughter, Meta, and the other half to a son Arthur. Meta had predeceased the testator and the trial court held that her share of the residue should pass as intestate property, some of it thus passing to the specifically disinherited individuals. On appeal, this court affirmed, stating at pages 441, 442, 78 N.W.2d at page 752:

". . . No doubt this is not what testator intended, but the only way in which he could vary the rules of descent would be by making an effective gift at variance with these. This he did not do.' . . .

'We find no escape from the logic of that opinion if we are to refrain, as we ought, from writing a new will for the testator. . . .'

In Estate of Mory (1966), 29 Wis.2d 557, 139 N.W.2d 623, 624, the testatrix's will, after making several specific gifts, left the residue of the estate to three sisters and a brother in equal shares, individually, not as a class. All four of these individuals predeceased the testatrix. The trial court concluded that the testatrix did not intend to die intestate as to any property and stated, "construing the will as a whole, it is apparent that the testatrix intended that lapsed residuary shares should be distributed to the other residuary legatees and to their issue by right of representation." The trial court thus held that the residue did not pass to all the heirs by intestacy but rather only to the heirs of the deceased residuum legatees by representation. On appeal this court reversed the trial court's decision and ordered that the property be distributed under the laws of intestate succession. We rejected the approach of Reynolds, Waterbury and Nielsen, supra, and reaffirmed Rosnow, supra, stating that it 'laid to rest the confusion found in the early lapsed-legacy cases in determining the intent of the testator.' Mory, page 564, 139 N.W.2d page 627. The court concluded at page 565, 139 N.W.2d at page 627:

'There is nothing in the will to indicate an intent should the residuary gifts lapse. . . . (T)he presumption against intestacy is of no effect when the testatrix has provided no indication, by the language used, of her intent in this situation. What she would have provided had she anticipated that all the residuary beneficiaries would predecease her is a matter for conjecture and speculation. For us to presume her intent would amount to judicial will drafting, which we refuse to do.'

In Will of Wehr (1967), 36 Wis.2d 154, 152 N.W.2d 868, the will provided for the creation of a testamentary trust, the corpus of which was the residue of the estate. Louise Wehr, Gretchen Wehr, C. Frederic Wehr and Edward R. Wehr were named lifetime beneficiaries of the trust and upon its termination five individuals were to receive $50,000 legacies from the corpus, with the balance being divided equally between an aunt, Clara Gebhardt, and a cousin, Carl Wehr. The will contained the following provision:

'I have heirs at law other than my said brothers Edward and C. Frederic and my said sisters Gretchen and Louise; but I do not consider it necessary to provide herein for any of my heirs at law other than the said Louise, Gretchen, C. Frederic, and Edward.'

Clara Gebhardt died without issue prior to the testator and the question thus arose as to the proper disposition of the portion of the residue intended for her.

In holding that the property should pass by intestate succession to the testator's legal heirs at the time of his death, even though the will had specifically stated that the testator did not wish to provide for them, this court stated in Wehr at page 179, 152 N.W.2d at page 882:

"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. . . .'

'. . .

'However, before these rules of construction may be invoked, there must be language in the will which requires construction. . . . Once such language is found, it then might be proper to resort to extrinsic surrounding circumstances for the purposes of construction. There is no language in William E. Wehr's will which this court can construe to ascertain testator's intent as to the disposition of the Gebhardt remainder in the event that it lapsed.'

Rosnow, Mory and Wehr, supra, are controlling in the case at bar. Nellie Connolly's will gives no indication of nay kind as to the intended disposition of the residue of her estate in the event of a lapse. The consistent holdings of Rosnow, Mory and Wehr are that the property must pass to the legal heirs by intestacy notwithstanding the fact that some of the heirs may have been specifically disinherited. Any other result would amount to judicial will drafting, which this court has refused to do. The traditional refusal of the courts to consider extrinsic evidence as to the testator's intent, except when there is language in the will subject to several reasonable interpretations, is grounded in strong policy considerations:

'A will is a final and a sacred thing and unless its terms present an ambiguity, we are bound by the instrument itself. . . .

'. . . There would be little security in the right to transfer property by will if the meaning could be changed by parol declarations of the testator to scriveners or witnesses. . . .' Will of Tousey (1951), 260 Wis. 150, 154, 50 N.W.2d 454, 456. See also: Estate of Breese (1959), 7 Wis.2d 422, 429--430, 96 N.W.2d 712.

The appellant attempts to distinguish Rosnow and Wehr, supra, by noting that they each involved wills with gifts to more than one residuum legatee, only one of which predeceased the testator. The appellant suggests that the holdings in those cases were to prevent the other residuum legatees from getting the lapsed share and that this court follows a contrary rule when only one residuum legatee is named in the will. This is not correct. Appellant cites one case to support his position--Estate of Mangel (1971), 51 Wis.2d 55, 186 N.W.2d 276, which is distinguishable from Rosnow, Mory, Wehr and the case at bar. In Mangel, the testator left the residue of his estate 'to my beloved wife Irene E. Mangel and to her heirs and assigns forever . . .' The only reason extrinsic evidence was allowed was to determine whether 'and to her heirs and assigns forever' were words of limitation or words of substitution. Thus the distinguishing factor: The court had determined that there was language in the will which was ambiguous on its face.

There is no logical reason why this court should decide, as the appellant intimates we have already done, that a lapsed portion of the residue should pass by intestacy when there are surviving residuum legatees, but hold that there is no intestacy when there is only one named residuum legatee and that legatee has predeceased the testator. The case against intestacy is even stronger in the former situation where there are surviving residuum legatees who are identificable objects of the testator's bounty as demonstrated by the will.

The commentators make no distinction between the two situations:

'Except as lapse is prevented by the . . . (anti-lapse) statute, a devise or bequest lapses if the beneficiary dies before the testator. . . .

'. . . If the legacy which lapses is itself part of or the entire residuary...