Estate of Graef, Matter of
| Citation | 124 Wis.2d 25,368 N.W.2d 633 |
| Decision Date | 29 May 1985 |
| Docket Number | No. 83-1926,83-1926 |
| Parties | In the Matter of the ESTATE OF William J. GRAEF, Deceased. Emma GARRETT, will proponent, Appellant, v. Mary McQUILLEN, will contestant, Respondent. |
| Court | Wisconsin Supreme Court |
John F. Lampert, Fort Atkinson, for appellant.
W.E. Kiessling, Jr. (argued) and Lake Mills, for respondent; Kiessling & Lesperance, Lake Mills, on brief.
This appeal from a judgment of the circuit court for Jefferson county, John B. Danforth, circuit judge, is before the court on certification by the court of appeals pursuant to sec. 809.61, Stats.1983-84.
This case raises the issue of the devolution of property under the following circumstances: The property is bequeathed to the testator's spouse with a gift over to another person 1 in the event the spouse predeceases the testator. The testator and the spouse are divorced after the execution of the will, and the spouse survives the testator. Sec. 853.11(3), Stats.1983-84, bars the spouse from taking under the will. 2 The question posed by these facts is who is entitled to the property which is the subject of a statutorily revoked bequest to the spouse and a gift over in the event of the death of the spouse. Does it pass as a gift over to the person named in the will even though the spouse has not predeceased the testator? Or since the spouse has not predeceased the testator does the gift over fail and the property pass according to the laws of intestacy?
The circuit court entered judgment declaring that William J. Graef's testamentary bequest to Pearl Graef, his wife at the time of the execution of the will but from whom he was divorced at the time of his death, was revoked under sec. 853.11(3), Stats.1983-84, and that the gift over would not take effect since the contingency set forth in the will, namely that his wife, Pearl Graef, predecease him, did not occur. We reverse the judgment.
Sec. 853.11(3) revokes the will provision in favor of the divorced spouse. We conclude that the effect of sec. 853.11(3), for purposes of construing a will, is that the divorced spouse is, as a matter of law, presumed to have predeceased the testator. Accordingly, we hold, under the facts of this case, that since the contingency which the testator set forth, namely, that his wife predecease him, is presumed to have occurred, the gift over to the residuary beneficiary is given effect.
The parties agree on the facts. William J. Graef's last will and testament, executed on November 14, 1951, provided that upon his death his entire estate was to go to his wife, Pearl Graef, 3 but if she predeceased him or died within 6 months of his death, the estate was to be divided into three equal shares, one share to be distributed to his mother, one to his father, and one "to my wife's mother, Emma Garrett, of 1101 Genova Street, Houston, Texas." 4
The testator and Pearl Graef were married in 1947 and were divorced in 1980. There were no children of the marriage. The testator did not remarry. The testator's father and mother predeceased the testator; the father died in 1963 and the mother in 1978. William J. Graef died testate on May 26, 1982. Both Pearl Graef and Emma Garrett survived the testator.
The parties stipulated that the draftsman of the will had no records or files which could supplement the will.
It is clear that the bequest to Pearl Graef is governed by sec. 853.11(3) and that under the terms of that statute the bequest is revoked. Sec. 853.11(3), Stats.1983-84, provides that "[a]ny provision in a will in favor of the testator's spouse is revoked by an annulment of the marriage to such spouse or by an absolute divorce." 5
Although sec. 853.11(3) is clear with regard to the effect of the divorce on the bequest to the spouse (i.e., the bequest is revoked), the statute is not clear with regard to the effect which the statutory revocation of the bequest to the spouse has on the other provisions of the will.
Although the question of the devolution of property under the fact situation in the present case is one of first impression for this court, the question has arisen in other states. Apparently most courts have given effect to the gift over rather than have the property devolve according to the laws of intestacy. There appear, however, to be at least three potential approaches to the question: a case-by-case construction of the phrase "a provision in a will in favor of the testator's spouse" in sec. 853.11(3), a case-by-case examination of the testator's intent, and the creation of a rule of construction applicable to cases like the case at bar, namely, a rule of will construction that the word "predecease" in the will means the death of the spouse, or a rule of statutory construction that sec. 853.11(3) makes divorce the equivalent of the death of the spouse. We now consider the ramifications of each of these approaches.
One approach in this type of case is to treat a gift over to a blood relative of the spouse (but not of the testator) or a natural bounty of the spouse's affections as a "provision in a will in favor of the testator's spouse " and therefore consider the provision revoked by the very terms of sec. 853.11(3).
We are not persuaded that the legislature intended sec. 853.11(3) to be interpreted as stating as a matter of law that the phrase "in favor of the testator's spouse" includes not only the revocation of bequests to the spouse but also the revocation of bequests to the spouse's parents, siblings, children, or other natural bounties of the spouse's affections. The legislature could have enacted a law that revoked every will provision that directly or indirectly might be of benefit or advantage to the spouse or which might be favorable to the spouse. The legislature did not enact such a law.
Even if we were to interpret "in favor of the testator's spouse" very broadly to include the revocation of bequests to persons close to the spouse--and we do not so interpret the statute--no extrinsic evidence was presented in this case (and we are not presented with the question of whether such evidence is admissible) to show that the bequest to Emma Garrett was in fact in favor of the testator's spouse. We would be engaging in confabulation were we to say that the bequest is in favor of the spouse. We know nothing about the relation between the spouse and her mother. We cannot therefore conclude that as a matter of fact the bequest is in favor of the spouse and is revoked by sec. 853.11(3).
A second approach to deciding the devolution of the property which is the subject of the gift over would be to ascertain and effectuate the intent of the testator. Intent is discoverable, according to our cases, by considering the language of the will, the entire testamentary disposition, the circumstances at the time of the will's execution, rules of will construction, and extrinsic evidence. See 2 MacDonald, Wisconsin Probate Law, secs. 15A:4, 15A:5 (8th ed. 1983).
Many courts use this "intent of the testator" approach, and in most cases the courts conclude that the testator intended that the gift over be given effect. The courts reason that the testator intended to die testate and that the testator intended that the divorce which revoked the bequest to the wife be equivalent to the death of the spouse. 6
Thus in Steele v. Chase, 151 Ind.App. 600, 281 N.E.2d 137 (1972), the will bequeathed the estate to the spouse, but if the spouse predeceased the testator, one-half of the estate would go to his stepson (his wife's son from a previous marriage) and one-half would go to the testator's brothers. After execution of the will, the parties divorced; the wife survived the testator; and the heirs challenged the bequest to the stepson. The court upheld the testamentary gift to the stepson, explaining: "[I]t would be contrary to the intention of such testator for a court to disregard the named beneficiary and permit the estate to pass by intestacy." 281 N.E.2d at 140.
Similarly in Lamontagne v. Hunter, 341 So.2d 1074 (Fla.2d Dist.Ct.App.1977), which also involves substantially the same facts as this case, the court upheld a gift over to the children of the divorced spouse against a challenge by the heirs. As it had in previous cases, the court concluded that the testator's clear intent was that the stepchildren receive the residuary estate if the wife were not available to take under the will. The court said: "The will controls; the divorced wife is out; and [the stepchildren] take as contingent residuary legatees, the contingency in law having occurred." 341 So.2d at 1075.
Courts have also construed the will as demonstrating that the testator intended that a gift over to a charity be given effect even though the divorced spouse survives the testator. Thus in First Church of Christ, Scientist v. Watson, 286 Ala. 270, 239 So.2d 194 (1970), the Alabama Supreme Court was faced with a will which left the estate to the divorced second wife with a gift over to a church if she predeceased him. Subsequent to the execution of the will, a divorce ensued. The children of the first marriage argued that the church should not receive the estate because the contingency expressed in the will, the death of the divorced second wife, had not occurred. A statute, similar to sec. 853.11(3), revoked the gift to the wife. The Alabama Supreme Court apparently found several reasons persuasive to hold that the testator intended the church to take the wife's share if the wife was, for any reason, unable to take under the will: (1) the testator did not intend to die intestate; (2) the testator made no provision for the children of his former marriage and they would not share in the estate unless the court ruled that the law of intestacy was applicable; and (3) although the statute did not specifically provide that property prevented from passing to a divorced spouse through revocation by divorce...
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