Estate of Hillman, Matter of

Decision Date22 January 1985
Docket NumberNo. 83-1752,83-1752
Citation122 Wis.2d 711,363 N.W.2d 588
PartiesIn the matter of the ESTATE OF William F. HILLMAN, Deceased. Delmer JORNS, Appellant, v. Ervin ROEHRBORN, Personal Representative, Respondent.
CourtWisconsin Court of Appeals

Smith & O'Neil, S.C., Faye L. Calvey, Milwaukee, for appellant; R. George Burnett, Milwaukee, of counsel.

Stauber, Dehn, Wynia & Kissinger, Lawyers Chartered and Dennis A. Juncer, Marshfield, for respondent.

Before CANE, P.J., and DEAN and LaROCQUE, JJ.

CANE, Presiding Judge.

Delmer Jorns appeals a judgment 1 construing William F. Hillman's will. The trial court held that part of the residuary of Hillman's estate should pass by the laws of intestacy because both the primary beneficiary and the substitute beneficiary predeceased the testator. The issues on appeal are:

(1) Whether Hillman made a gift by implication to the heirs of the primary beneficiary, and

(2) Whether the heirs succeed to the interest of the primary beneficiary pursuant to Wisconsin's anti-lapse statute, sec. 853.27(1), Stats.

Because the intention that the heirs of the primary beneficiary should succeed to the beneficiary's interest is not discernible from the language of the will, we will not imply a gift by implication. Because the substitute beneficiary became entitled to inherit upon the death of the primary beneficiary, and because the substitute beneficiary was not a relative of Hillman, the anti-lapse statute is not applicable to this case. We therefore affirm the judgment.

The residuary clause of Hillman's will 2 provides that the remainder of his estate be divided equally among his two sisters and his ten nephews and nieces, and to their heirs by right of representation. The will excepts the heirs of one sister, however, from succeeding to her interest. The will gives the sister's share absolutely and forever to her husband if she dies before Hillman. The sister and her husband both died before Hillman. The will does not provide for the contingency of the husband's death.

Jorns argues that the trial court erred by construing the will to pass part of Hillman's estate under the laws of intestacy. He notes that the objective of will construction is to ascertain the intention of the testator, and that the law strongly presumes an intent not to die intestate when a residuary clause is included in a will. Estate of Britt, 249 Wis. 30, 33, 23 N.W.2d 498, 500 (1946). Jorns therefore concludes that the trial court should have construed the will to gift the sister's share of Hillman's estate to her heirs in the event that both the sister and her husband predeceased the testator. The rules of will construction are applicable, however, only if the language of the will is ambiguous. In re Trust of Pauly, 71 Wis.2d 306, 310, 237 N.W.2d 719, 722 (1976). Failure to provide for a contingency is an omission rather than an ambiguity of language that requires judicial construction. Id.

The presumption against intestacy does not apply to the construction of this will because the will is not ambiguous. We read Hillman's will to unambiguously give his sister's residuary share to her husband if she dies before the testator. The will completely fails to provide for the contingency of the husband's death. Although Hillman may have failed to provide for this contingency through oversight, we cannot supply the deficiency without some express indication of intent in the will. For us to assume his intent would constitute judicial will-drafting, which we refuse to do. Estate of Connolly, 65 Wis.2d 440, 449, 222 N.W.2d 885, 889 (1974).

Although the will fails to anticipate the death of the sister's husband, we may review the will to see if the gap is filled by implication. See Pauly, 71 Wis.2d at 311, 237 N.W.2d at 722. The doctrine of gift by implication may be used to fill a void or an omission in the express terms of a will. Estate of MacLean, 47 Wis.2d 396, 405, 177 N.W.2d 874, 879 (1970). To read into a will a gift by implication, it is necessary to first find a positive, disposing intent based on a contingency that did not occur. Estate of McWilliams, 78 Wis.2d 328, 334, 254 N.W.2d 277, 280 (1977). It is then possible, if the facts warrant it, to imply the same intent concerning the contingency that did occur, but that was not accounted for in the will. Id. Unless the clue to the intention is imbedded in the words of the will, the court cannot imply the gift to fill the gap. MacLean, 47 Wis.2d at 406, 177 N.W.2d at 879.

This case does not present a proper instance for application of the doctrine of gift by implication because Hillman's testamentary intent in the event of the death of both his sister and her husband is not discernible from the language of the will. This court can only speculate as to Hillman's intent with regard to the contingency that occurred. The doctrine of gift by implication may not be used to reform a will or to correct an obvious mistake or an oversight by the draftsman. Id. at 405, 177 N.W.2d at 879. The fact that a testator makes no specific provision for the situation that has arisen, or that subsequent changes make it quite likely that he would have made a provision if he had thought that they would occur, does not justify the court in construing the will so as to make a gift by implication. Connolly, 65 Wis.2d at 452, 222 N.W.2d at 891. The doctrine of gift by implication is not meant...

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4 cases
  • Sweet v. Hisgen (In re Sweet)
    • United States
    • Nevada Court of Appeals
    • October 20, 2022
    ... 520 P.3d 827 In the MATTER OF the ESTATE OF Marilyn Weeks SWEET, Deceased. Christy Kay Sweet, Appellant, v. Chris Hisgen, ... court construe the will as absolute." (internal quotation marks omitted)); In re Estate of Hillman , 122 Wis.2d 711 , 363 N.W.2d 588, 590 (Wis. Ct. App. 1985) ("The presumption against intestacy ... ...
  • Estate of Olson, Matter of
    • United States
    • Wisconsin Court of Appeals
    • February 8, 1989
    ...from judgments construing wills. See, e.g., In re Estate of Graef, 124 Wis.2d 25, 368 N.W.2d 633 (1985); In re Estate of Hillman, 122 Wis.2d 711, 363 N.W.2d 588 (Ct.App.1985). While neither of these cases addresses the question of appealability, it is evident from the procedural status of e......
  • Woerfel v. Interstate Heirs
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    • Wisconsin Court of Appeals
    • June 24, 1986
    ...into a will, we must find a 'positive, disposing intent based on a contingency that did not occur.' Estate of Hillman, 122 Wis.2d 711, 715, 363 N.W.2d 588, 590 (Ct. App. 1985). We will not apply the gift doctrine to fill the gap unless the clue to the testator's intention is imbedded in the......
  • Mundt v. Mundt
    • United States
    • Wisconsin Court of Appeals
    • October 15, 1987
    ...to the intention is imbedded in the words of the will, the court cannot imply the gift to fill the gap. In Matter of Estate of Hillman, 122 Wis.2d 711, 715, 363 N.W.2d 588, 590 (Ct. A pp. 1985) (citations omitted). A gift by implication may be found where a will fails to cover a contingency......

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