Dannenburg v. Dannenburg
| Decision Date | 23 June 1953 |
| Docket Number | No. 35092,35092 |
| Citation | 271 P.2d 345 |
| Parties | DANNENBURG v. DANNENBURG et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The object and prime purpose in the construction of a will is to arrive at and give effect to the intention of the testator.
2. Testamentary dispositions are presumed to vest at the testator's death.
3. The word, 'receiving', as used in clause of will providing for lapse of legacies in case of legatee's death before legacy is received held inconsistent and repugnant to words of absolute gift and clause is, therefore, void for ambiguity. Share of child who survived testatrix but died before distribution of the estate, is payable to the personal representative of the estate of the deceased child.
Wayne W. Bayless, Oklahoma City, Harry D. Moreland, Tulsa, for plaintiff in error.
John J. Southwick, William A. Harrington, Hurst & Hurst, David H. Sanders, Edwin A. Ellinghausen, Tulsa, and P. W. Holtzendorff, Claremore, for defendants in error.
This action involves a construction of the will of Sarah Elizabeth Deannenburg, deceased.
For convenience the different paragraphs of the will and the two codicils are numbered. The will and codicils, omitting the attestation clauses, read:
'Will of Sarah Elizabeth Dannenburg
'1. I, Sarah Elizabeth Dannenburg of Chelsea, Oklahoma, being of sound mind do make and publish this my last will.
'2. I, hereby revoke all other wills and testamentary instruments. I am a widow, and have four surviving children, viz.:
'O. L. Dannenburg, now at Los Angeles, California
'Henry W. G. Dannenburg, of Oklahoma City, Oklahoma
'Alice N. Dannenburg, of Chelsea, Oklahoma
'W. N. Dannenburg, of Tulsa, Oklahoma and
two grandchildren, the children of a deceased daughter Beatrice, by her first husband, named Waldemar Dwight Todd, and Alfred Grady Todd, of Chelsea, Oklahoma.
'3. I direct that all my just debts, and my funeral expenses and the expenses of administration be paid, and I name my son Waldemar N. Dannenburg as executor of my will, and request the Probate Court not to require him to give any bond, and if bond be required that it be a nominal one, subject to the above.
'4. I bequeath to my daughter, Alice N. Dannenburg, and direct my executor to deliver to her as soon as possible after my death, thirty thousand dollars ($30,000.00) in value of money and liberty bonds at market value when delivered, to be selected by my executor.
'5. The remainder of my estate I devise and bequeath to my son W. N Dannenburg in trust for the uses and purposes hereinafter set out.
'6. I direct that my home and all household furnishings be held by my trustee as long as my daughter, Alice N. Dannenburg desires to occupy the home and she be permitted to use them free of charge, and that when she ceases to use the home my trustee shall deliver to her as her own, my library table that belonged to my Great Great Grandfather, Abram Bradley, and at said time he shall deliver to my Grandson, Alfred Todd, my walnut sofa, and my books and my high boy, to be his absolutely, and at said time my trustee shall deliver to my Grandson, Dwight Todd, the four pictures brought from France, and their frames, and the two commodes and lamps kept thereon, and my convex mirror, two brass seconces, and the hand painted picture of Uncle Joseph Bradley, and my Chippendale chair.
'7. I direct that my trustee deliver to my Granddaughter, Janet Elizabeth Dannenburg, on her eighteenth birthday, the miniature painting of Uncle Joseph Bradley, my two diamond rings, one with solitaire setting, the other a cluster, my diamond and pearl broach, my black onyx pin with pearl spray, my gold cross and chain, my hand carved cathedral chair, my Great Grandmother's jewelry box, and my silver tea set, the silver tea set and picture to remain for the use of Alice Dannenburg as long as she maintains the home, all to be the property of my said Grandchild. In the event my Grandchild fails to reach her eighteenth birthday, the legacy to her to lapse.
'8. After paying my debts, funeral expenses, and expenses of administration, and the legacy to Alice N. Dannenburg, I devise and bequeath to my son Waldemar N. Dannenburg all the remainder of my estate of every kind, to be by him held in trust and used for the purposes above set out, and for the purpose of converting it into cash as rapidly as his judgment as a prudent business man may indicate, and the distribution of the cash, and for that purpose I empower him to collect all debts owing to me and to sell for cash or on time any and all my property, and make conveyance of same, renew the obligations due me and from time to time distribute the cash on hand after paying the expenses as follows:
'9. One fourth to my son, W. N. Dannenburg, one fourth to my son O. L. Dannenburg, one fourth to my son Henry W. G. Dannenburg, one eighth to my Grandson Alfred Grady Todd, one eighth to my Grandson Waldemar Dwight Todd, until the $30,000.00 legacy to Alice N. Dannenburg is equalized, at which time she shall share in the remainder on the basis of one fifth to each of my children, and the body heirs of any deceased child.
'10. In the event any of the beneficiaries herein provided for shall die before receiving the full amount of his or her legacy, the remaining portion shall lapse unless the legatee shall leave heirs of the body, in which case the undistributed portion of the beneficiary shall be distributed to his or her heirs of the body in equal parts, but in case either of the Todd Heirs shall die before receiving his full portion, and without body heirs, his part shall go to the remaining one.
'11. In the event there is any remainder of my estate after the legacies herein provided are paid in full, I direct that it be converted into cash and divided equally between my surviving children, and the heirs of their bodies, the body heirs to represent their deceased parents.
'12. I further direct that any disposition by any beneficiary of any share prior to actual distribution shall be absolutely null and void, and that no liens either voluntary or by operation of law can be made to bind the share of any beneficiary prior to distribution by the trustee, and the trustee is forbidden to recognize such disposal.
'13. It is my desire that my trustee proceed as rapidly as good business management may indicate to convert the estate into cash and distribute the proceeds, and that no bond be required of him as trustee.
'14. It is my will that my executor and trustee be allowed one hundred dollars ($100.00) per month for services to be retained each month and all necessary travelling and office and legal expenses in handling the estate, the allowance for personal services to end by the expiration of 24 months from my death, the same to be in lieu of commissions.
'15. In case any beneficiary contests this will the share of such contestant in my estate shall be one dollar ($1.00) and no more, and the remaining portion of such contestants legacy shall lapse. Any debt of any beneficiary owing me at my death, shall be cancelled and no effort shall be made to collect the same.
'16. It is my desire and will that my trustee, with funds of the estate, pay the taxes and keep in repair and insure the home and furniture against fire and wind storms as long as Alice N. Dannenburg uses them as a home, and as soon as she abandons the same, or dies, the home place along with the furniture, shall be converted into cash by my trustee and proceeds, after paying expenses, shall be the trustee be distributed to the surviving beneficiaries, and the body heirs of any deceased beneficiary as above provided, but nothing shall be given under this provision to any contestant.
'17. In the event of the inability of the trustee named at any time to act, I request the District Court of Rogers County to appoint some discreet person not interested in the estate to finish the conversion into cash, and the distribution between the beneficiaries and heirs of the body as above provided, requiring such bond to be given by the substituted trustee as in the discretion of said court may be proper, and the trustee to make the distribution and conveyances under direction of said court for reasonable compensation to be fixed by said Court.
'18. In witness of all which I have hereunto on this 7th day of April, 1936, subscribed my name in the presence of R. C. Brewer and W. H. Kornegay and C. S. Kornegay, at the end thereof whom I have requested to act as subscribing witnesses.
'/s/ Sarah Elizabeth Dannenburg
'Testatrix
'Codicil to Will of Sarah Elizabeth Dannenburg
'1. I, Sarah Elizabeth Dannenburg, do make and publish this codicil to my will heretofore made on April 7th, 1936, witnessed by R. C. Brewer, W. H. Kornegay and C. S. Kornegay.
'2. There is in said will a clause providing that any debt owing to me at my death by a beneficiary should be cancelled. I have made loans to some of the beneficiaries since the making of said Will, and have made gifts out right to some, and now direct that there be charged against the shares of the beneficiaries set out in said Wills, as an advancement already made, the following amounts;
'3. To the share of my Grandson Alfred Grady Todd nothing, of my Grandson Waldemar Dwight Todd One Thousand Dollars ($1000.00), of my daughter Alice N. Dannenburg nothing, of my son W. N. Dannenburg nothing, of my son, O. L. Dannenburg One Thousand Dollars ($1000.00) of my son Henry W. G. Dannenburg Three Thousand Dollars ($3000.00).
'4. In making the above adjustment, the amount of all loans made and other advancements made by me in excess of the amounts specified are by me now cancelled. Any advances made by me from now on, to any of said beneficiaries, I direct shall be classed in the distribution of my estate as an advancement, and settlement...
To continue reading
Request your trial
-
Estate of Eversole, Matter of
...of Estate of Westfahl, Okl., 674 P.2d 21, 24 (1984); Matter of Estate of Zarrow, Okl., 688 P.2d 47, 49, 51 (1984); Dannenburg v. Dannenburg, Okl., 271 P.2d 345, 351 (1954); Noble v. Noble, 205 Okl. 91, 235 P.2d 670, 673 (1951); Dilks v. Carson, 197 Okl. 128, 168 P.2d 1020, 1021-22 (1946).31......
-
O'Donoghue v. Dooley (In re David L. Dooley Trust)
...remainder interest which followed life estate was fully vested, authorizing remainderman to convey her interest by deed); Dannenburg v. Dannenburg, 1953 OK 201, ¶ 32, 271 P.2d 345, 352 (concluding son's share of mother's estate vested on her death and did not lapse despite dying before dist......
-
United States v. Mappes
...original devise. 84 O.S. § 156. See: Ferguson v. Patterson, 10 Cir., 191 F.2d 584, and Oklahoma cases cited therein; and Dannenburg v. Dannenburg, Okl., 271 P.2d 345. We have found no case from Oklahoma, or any other jurisdiction, construing the precise language of our instrument. The legal......
-
Hein v. Hein
...is that testamentary dispositions are presumed to take effect upon testator's death. Franklin v. Margay Oil Corp., supra; Dannenburg v. Dannenburg, Okl., 271 P.2d 345; Riddle v. Jay, Okl., 356 P.2d 1074; and recognized in Conville v. Bakke, supra, although specific exception to the rule was......