Estate of Corrigan, In re

Decision Date30 November 1984
Docket NumberNo. 84-560,84-560
Citation358 N.W.2d 501,218 Neb. 723
PartiesIn re ESTATE OF Theresa P. CORRIGAN, deceased. Clara ZABOROWSKI et al., Appellants, v. Charis M. FLEMING, Personal Representative of the Estate of Theresa P. Corrigan, deceased, Appellee.
CourtNebraska Supreme Court

Syllabus by the Court

1. Wills. A patent ambiguity in a will is one appearing on the face of the instrument as a result of the language contained therein.

2. Wills. A patent ambiguity in a will must be resolved without resort to extrinsic evidence.

3. Appeal and Error. This court is obliged to reach its own independent conclusions on questions of law.

4. Wills. The cardinal rule in construing a joint and mutual will is to ascertain and effectuate the intention of the testators if that intention is not contrary to law.

5. Wills. In searching for the intention of the testators of a joint and mutual will, we must examine the entire will, consider each of its provisions, give words their generally accepted literal and grammatical meaning, and indulge in the presumption that the testators understood the meaning of the words used.

6. Wills. The presumption that a testator intends to dispose of his entire estate and not to die intestate as to either a part or the whole of his estate cannot supplant the actual intent of the testator as derived from the language of the will.

7. Wills. It is not the province of the courts by construction to supply omissions or to write residuary clauses for testators who neglect to do so.

8. Wills. The presumption that one making a will intended to fully dispose of his or her estate by that document does not overcome the rule requiring an express provision or necessary implication to disinherit one's heirs.

William W. Griffin, O'Neill, for appellants.

Boyd W. Strope, O'Neill, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Theresa P. Corrigan and her husband, Patrick J. Corrigan, executed a joint and mutual last will and testament on December 22, 1970. Patrick Corrigan died in 1972. Upon Theresa Corrigan's death on January 6, 1984, the county court interpreted the will in favor of the beneficiaries named therein. Theresa Corrigan's heirs at law, her brothers, sisters, and children of her deceased brothers and sisters, appealed that determination to the district court, which affirmed the county court. The heirs now seek this review, claiming the lower courts erred in their respective interpretations. We agree with that claim and accordingly reverse the judgment and remand to the district court, directing it to remand to the county court with the direction that the county court cause distribution of the estate to Theresa Corrigan's heirs.

The legal thorns growing on the grave of Theresa Corrigan germinated in the following four paragraphs of the joint and mutual will:

FIRST.

We and each of us do hereby give, devise and bequeath all of our property, of whatsoever nature, whether real or personal property, and wherever situate to the survivor of us, to have and to hold absolutely and forever.

SECOND.

In the event that we are killed as the result of a common disaster, or in the event that neither of us shall survive the other for a period of thirty calendar days, it is hereby determined that Patrick J. Corrigan shall have died first, and all of said property shall then pass to his widow, Theresa P. Corrigan. In the event that neither of us shall survive the other for the period last above stated, then and in that event, we jointly and mutually give, devise and bequeath all of our property as hereinafter set forth: We Give and bequeath to St. Joseph's Catholic Church of Atkinson, Nebraska the sum of Ten Thousand ($100,00.00) [sic] dollars to have and to hold absolutely and forever.

THIRD.

All of the rest and residue of our property, after the payment of the bequest to St. Joseph's Church, we jointly and mutually give, devise and bequeath in equal shares to Catherine Bonnie Whalen, now residing in Oakland California and Charis Fleming, of Ardmore, South Dakota, to have and to hold, absolutely and forerver [sic].

Lastly, we make constitute and appoint the survivor of us to be Executor or Executrix of this our mutual Last Will and Testament. In the event we are however killed in a common disaster or do not survive each other for thirty calendar days then we make constitute and appoint Charis Fleming of Ardmore South Dakota, who actually resides in Nebraska, the Executor of this our Last Will and Testament.

The threshold question is whether paragraph THIRD is a separate residuary clause operating free of any conditions on all property not otherwise disposed of, or whether the dispositions made therein are subject to the conditions imposed by paragraph SECOND. It cannot, therefore, be said the will is without ambiguity. The ambiguity being a patent one, that is, one appearing on the face of the instrument as a result of the language contained therein, we must resolve it without resort to extrinsic evidence. In re Estate of Florey, 212 Neb. 665, 325 N.W.2d 643 (1982). The question being one of law, we are obliged to reach independent conclusions with respect thereto. Ranger Division v. Bayne, 214 Neb. 251, 333 N.W.2d 891 (1983).

In reaching those conclusions we are bound by a number of rules of construction. The cardinal rule in construing a joint and mutual will is to ascertain and effectuate the intention of the testators if that intention is not contrary to law. Sheldon v. Watkins, 188 Neb. 599, 198 N.W.2d 455 (1972). In searching for the intention of the testators, we must examine the entire will, consider each of its provisions, give words their generally accepted literal and grammatical meaning, and indulge in the presumption that the testators understood the meaning of the words used. In re Estate of Schmitz, 214 Neb. 28, 332 N.W.2d 666 (1983). Further, " ' "[t]he intention of the testator is to be ascertained from a liberal interpretation and comprehensive view of all of the provisions of the will." ' " In re Estate of Florey, supra 212 Neb. at 673, 325 N.W.2d at 647, quoting Gretchen Swanson Family Foundation Inc. v. Johnson, 193 Neb. 641, 228 N.W.2d 608 (1975).

Paragraph FIRST unconditionally gives the surviving Corrigan all of the other's estate "to have and to hold absolutely and forever."

Paragraph SECOND then specifies the conditions...

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