Estate of Abraham v. Heritage Trust Co.

Decision Date02 July 1987
Citation140 Wis.2d 866,412 N.W.2d 901
CourtWisconsin Court of Appeals
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In the Matter of the Estate of GLADYS STONE WIRTH, Deceased: ESTATE OF SUREN ABRAHAM, Deceased, Appellant, v. HERITAGE TRUST COMPANY, n/k/a M & I MARSHALL & ILSLEY BANK, Respondent. 86-1401.

Circuit Court, Milwaukee County

Affirmed

Appeal from an order of the circuit court for Milwaukee county: Robert J. Miech, Judge.

Before MOSER, P.J., WEDEMEYER and SULLIVAN, JJ.

SULLIVAN, Judge.

The Estate of Suren (a/k/a Cyrene) Abraham (Estate) appeals an order awarding the Estate only $18,000 from the sale of the tangible personal property selected pursuant to the will of Gladys Stone Wirth and denying the Estate attorney fees. Three issues are raised on appeal: (1) whether the testatrix intended to create a joint tenancy; (2) whether the Estate's interest in the proceeds of the sale was properly limited to $18,000; and (3) whether the Estate was entitled to an award of attorney fees. We hold that the testatrix did not intend to create a joint tenancy, that the Estate's interest in the proceeds was properly limited to $18,000, and that the trial court did not abuse its discretion by refusing to award the Estate attorney fees. We there fore affirm the order of the circuit court.

In July 1979 Gladys Stone Wirth died. Article II of her will provided:

II. Tangible Personal Property.

I direct my personal representative to allocate and distribute to my long-time friends, Cyrene Abraham and Louise Yaffe (Mrs. Frank Yaffe), or the survivor, if they or either of them survive, in approximately equal shares, such items of my tangible personal property as my personal representative determines would be desirable and appropriate for each of them to receive, and the balance thereof shall either be sold or distributed in kind as a part of the residue of my estate, and such selection, allocation and distribution in the discretion of my personal representative shall be final and binding and not subject to review. The certificate of my personal representative of delivery of such items to my friends shall be the full and sufficient receipt thereof.

The personal representative, Heritage Trust Company, conducted a walking tour of the Wirth home. Suren Abraham (Abraham) and Louise Yaffe (Yaffe) expressed their desires as to items within the home at that time. Approximately $40,000 worth of property was selected. Abraham selected items valued in excess of $18,000. Before any property was conveyed, however, Heritage discovered a cash shortfall and informed Abraham and Yaffe that no distribution would be made to them and that the property would be sold. Abraham and Yaffe obtained a temporary restraining order prohibiting the sale of the tangible personal property and moved for a construction of Article II. The restraining order was later vacated on stipulation of the parties. An auction of the tangible personal property realized $112,705.13 in cash and a $3,600 note.

Judge Elliot N. Walstead later determined that Article II was unambiguous and that it was a general bequest. Heritage was thus authorized to distribute the tangible personal property under Article II in accord with the needs of the Wirth estate. Prior to Judge Walstead's decision, Yaffe withdrew from the proceedings. Abraham appealed. The court of appeals reversed, holding that the words 'desirable and appropriate' were ambiguous and that they related not to cash needs of the Wirth estage, but rather to each legatee's age and station in life. The matter was remanded for an evidentiary hearing as to the testatrix's intent. On remand the trial court held that Article II did not create a joint tenancy and that Abraham was entitled to the sum of $18,000 based upon her selection of tangible personal property within the Wirth home. The trial court also denied Abraham's request for attorney fees.

The first issue is whether the testatrix intended to create a joint tenancy. The Estate contends that the use of the phrase 'or the survivor' created a joint tenancy between Abraham and Yaffe as a matter of law pursuant to sec. 700.19(1), Stats., and that Abraham survived Yaffe's interest. We disagree.

The facts relating to this issue are undisputed. When construing a will upon undisputed facts, an appellate court is free to make its own determination. Estate of McWilliams, 78 Wis. 2d 328, 335 n.5, 254 N.W.2d 277, 281 n.5 (1977). The fundamental concept of joint tenancy is that the tenants have an equal right to the enjoyment and use of the property, each having an undivided interest in the property. Jezo v. Jezo, 23 Wis. 2d 399, 404, 127 N.W.2d 246, 249 (1964). At common law four 'unities' were necessary to create a joint tenancy: (1) that the interest be created by one and the same person, (2) that the interest be created by one and the same conveyance, (3) that the interest be created at...

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