Coryell's Estate, In re
| Citation | 118 N.W.2d 1002,174 Neb. 603 |
| Decision Date | 04 January 1963 |
| Docket Number | No. 35258,35258 |
| Parties | In the Matter of the ESTATE of Daisy CORYELL, Deceased. Martin A. KATT and Lelia M. Bailey both as Administrators with Will Annexed of the Estate of Daisy Coryell, Deceased, Appellees, v. Lorraine Leland Coryell CLAUSSEN, Appellant, Pearl Parker et al., Appellees. |
| Court | Supreme Court of Nebraska |
1. The fact that a will expresses the intention of the testator to disinherit certain persons does not prevent such persons from sharing as heirs-at-law or next of kin in property as to which the testator died intestate.
2. Ordinarily a class gift is a gift to two or more persons who are not named and who have one or more characteristics in common by which they are indicated or who answer to a general description.
3. If the gift is made to beneficiaries by name, the gift is prima facie, not one to a class, even if the individuals who are named possess some quality or characteristic in common. This is particularly true if the beneficiaries are not described as having some quality or attribute in common.
4. The object and purpose of the court is to carry out and enforce the true intention of the testator as shown by the will itself in the light of attendant circumstances under which it was made.
5. It is a natural presumption that a testator making his will intended to dispose of his whole estate and not to die intestate as to any part of it, and in construing doubtful expressions this presumption has weight, but it cannot supply the actual intent of the testator to be derived from the language of the will.
6. In construing a will a court is required to give effect to the true intent of the testator insofar as it can be collected from the whole instrument, if such intent is consistent with applicable rules of law.
Chambers, Holland, Dudgeon & Hastings, Lincoln, for appellant.
Lester L. Dunn, Woods, Aitken & Aitken, Lincoln, for Katt et al.
Healey & Healey, Davis, Thone, Bailey & Polsky, Lincoln, for Parker et al.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This action involves the construction of the codicil to the last will and testament of Daisy Coryell, deceased, who will hereinafter be referred to as Daisy. The deceased husband of Daisy, L. L. Coryell, Sr., who will hereinafter be referred to as Coryell, Sr., was the sole beneficiary of Daisy's last will and testament, which was executed February 9, 1950. The Coryells had reciprocal wills and Daisy was named as the sole beneficiary of the estate of Coryell, Sr. On April 15, 1950, Daisy executed a codicil to her last will and testament providing for the contingency of the death of her husband. Coryell, Sr. also executed a like codicil to cover the contingency of Daisy predeceasing him. Daisy survived and was the sole beneficiary of the Coryell, Sr., estate. Daisy's last will and testament and codicil were admitted to probate November 5, 1959.
The pertinent provisions of the codicil are as follows: 'FIRST: One-half of all of my property, both real and personal to 'L. L. Coryell & Son Park Foundation, Incorporated' and one-half to my two sisters Pearl Parker and Myrtle Miller, and my husband's niece Mary Bailey share and share alike.
'SECOND: I make no bequest to my granddaughter Lorraine L. Coryell for the reason that she has been amply provided for through an Insurance Trust.'
The codicil contained no residuary clause. Lorraine L. Coryell Claussen, the granddaughter of Daisy, hereinafter referred to as Lorraine, is her sole and only heir in the absence of a will. The Insurance Trust referred to was set up by Lorraine's father, L. L. Coryell, Jr., in 1942. Coryell, Sr., died November 19, 1953. Myrtle Miller, Daisy's sister, hereinafter referred to as Myrtle, died April 8, 1959. Daisy died September 17, 1959, just a little over 5 months later. In addition to her granddaughter and sister, Daisy was also survived by a brother, Glenn Parker. In addition to Mary Bailey, three nephews and one other niece of Coryell, Sr., survived Daisy. Pearl Parker and Mary Bailey were single women and Myrtle Miller was a childless widow. Glen Parker, the brother of Daisy, who is one of the appellees, is assignee of one-half of whatever interest Pearl Parker may acquire because of the death of her sister Myrtle.
After the death of Coryell, Sr., in 1953, a dispute arose as to the right of Coryell, Sr., and Daisy to execute the wills of 1950. Lorraine and her mother, Lorraine B. Coryell, claimed rights under joint and reciprocal wills executed by their father and husband, and Coryell, Sr., Daisy, and Lorraine B. Coryell in October 1942. A settlement was made by Daisy as executor of the estate of Coryell, Sr., and personally, whereby Lorraine and Lorraine B. Coryell were paid $50,000 in cash and were conveyed a remainder interest in a farm in Nemaha County valued at $25,000. This transaction was consummated on February 9, 1954, at which time a receipt and final release and discharge was signed by Lorraine and Lorraine B. Coryell. The part of the release pertinent to this inquiry is as follows: '* * * the undersigned Lorraine B. Coryell and Lorraine L. Coryell hereby release and forever discharge any and all claims, demands and actions, rights, benefits and/or anything of value now due them or that may become due them or either of them from the estate of L. L. Coryell, Sr., deceased, and from Daisy Coryell individually and from the estate of Daisy Coryell after her death that may be due them or either of them now and at any time in the future by reason of the said joint, mutual and/or reciprocal Wills alleged to have been executed by the said L. L. Coryell, Sr., deceased, Daisy Coryell, L. L. Coryell, Jr., deceased, and Lorraine B. Coryell.
'It is further understood and agreed by any and all concerned that the settlement and payments made hereunder is a full, complete and final settlement now and for all time and the considerations are paid the said Lorraine B. Coryell and Lorraine L. Coryell, her daughter, to end for all time any future claims, demands and/or actions or future litigation against the estate of L. L. Coryell, Sr., deceased, and against Daisy Coryell individually and against the estate of Daisy Coryell after her death and against any of the respective representatives thereof, by reason of the contentions concerning the alleged joint, mutual and/or reciprocal Wills above mentioned.' (Italics supplied.)
It is evident that in the event Coryell, Sr., predeceased her, Daisy divided her estate into two halves. One she gave to L. L. Coryell & Son Park Foundation, Incorporated. As to this provision there is no question herein. The other portion she divided, share and share alike, among three designated persons, two related to her by blood and the other a niece of her deceased husband. There can be no question but that Daisy intended to dispose of her entire estate, and if she had died previous to April 8, 1959, she would have done so. The difficulty arises because she was predeceased by her sister Myrtle, one of the beneficiaries. The anti-lapse statute, section 30-228.03, R.R.S.1943, is not operative because Myrtle, who was related to Daisy, was not survived by issue.
It is appellees' contention that the provision for Myrtle did not lapse for three reasons: First, it was a class gift; second, because Lorraine cannot take because of the release and settlement; and, third, because Lorraine was specifically disinherited by the codicil. We will discuss these contentions in inverse order.
Daisy stated she was making no provision for Lorraine because she was provided for through an insurance trust. We do not construe this provision to be an attempt to disinherit or to exclude Lorraine, but rather as an explanation as to why no provision was being made for her in the will. However, even if we were to so construe it, which we do not, and to hold that the provision for Myrtle lapsed, then under our holding in Kula v. Kula, 149 Neb. 347, 31 N.W.2d 96, Lorraine would still inherit. In that case, the testator said in his will: "THIRD: It is my sincere wish,...
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