Forster v. Kamba's Estate (In re Kamba's Estate)

• Decision Date: 06 December 1938
• Citation: 230 Wis. 246,282 N.W. 570
• Parties: In re KAMBA'S ESTATE. FORSTER et al. v. KAMBA'S ESTATE.
• Court: Wisconsin Supreme Court

230 Wis. 246

282 N.W. 570

In re KAMBA'S ESTATE.

FORSTER et al.

v.KAMBA'S ESTATE.

Supreme Court of Wisconsin.

Dec. 6, 1938.

Appeal from a judgment of the County Court of Outagamie County; Fred V. Heinemann, Judge.

Proceedings in the matter of the estate of James F. Kamba, deceased, wherein Eleanor Kamba Forster and another petitioned for construction of the will upon its admission to probate. From a judgment excluding them from participation in the proceeds of insurance policies, Eleanor Kamba Forster and another appeal.-[By Editorial Staff.]

Judgment reversed and record remanded with directions.

Daughters of James F. Kamba, deceased, beneficiaries named in his will upon its admission to probate petitioned for constructionthereof. From a judgment excluding them from participation in the proceeds of two insurance policies specifically designated in the will and bequeathed thereby, the daughters appeal. The facts are stated in the opinion.

Bradford, Bradford & Derber, of Appleton, for appellants.

Krugmeier & Witmer, of Appleton, for respondent.

FOWLER, Justice.

Eleanor Kamba Forster and Viola Kamba Francek, beneficiaries named in the sixth and seventh paragraphs of the will of their father, James F. Kamba, after the admission of the will to probate, petitioned the county court for construction of those paragraphs. The testator besides making other bequests to his wife made her residuary legatee. The two paragraphs involved read as follows:

“Sixth: I give and bequeath to my daughter, Eleanor Kamba, as her share of my estate, the proceeds of the Five Thousand dollars ($5000.00) insurance policy in which she is named beneficiary and ten per cent. (10%) of the common stock of the Appleton Engraving Company held by me, the earnings and dividends of which shall be used by my wife, Nila Kamba, for the upkeep of the home until my said daughter, Eleanor, shall leave home.

“Seventh: I give and bequeath to my daughter, Viola Kamba, as her share of my estate, the proceeds of the Five Thousand dollars ($5000.00) insurance policy wherein she is named as beneficiary and ten per cent. (10%) of the common stock of the Appleton Engraving Company held by me, the earnings and dividends of which shall be used by my wife, Nila Kamba, for the upkeep of the home until my said daughted, Viola, shall leave home.”

The insurance policies named in the two paragraphs were both in force at the testator's death. The will misnamed the beneficiaries under the policies involved in each of the paragraphs. It named Eleanor as the beneficiary in one and Viola as the beneficiary in the other. In fact each policy named as beneficiaries Eleanor and Viola. But as the amount of the policies was the same the bequests to the two daughters were equal and precisely the same as if the beneficiaries had been correctly designated in the will. While the language of the paragraphs is plain enough, occasion for its construction arises from facts that occurred subsequent to the execution of the will. The widow's right to income from property bequeathed drops out because both daughters had “left home” prior to the testator's death. Nothing occurred to affect the rights of the daughters to the stock bequeathed by the paragraphs. We are only concerned with rights to the proceeds of the policies.

After making his will the testator desired to have the proceeds of the two policies paid to his daughters in monthly installments of $75 each instead of a lump sum. He desired the insurance company to act as trustee to hold the proceeds and so apply them. The insurance company pursuant to its custom would act as trustee only if the policies were made payable to the testator's “executors, administrators or assigns” instead of the beneficiaries named therein. To procure the change in mode of payment to his daughters, the testator changed the policies to make the policies so payable and entered into trust agreements with the insurance company making it trustee to hold and disburse the proceeds of the policies in monthly payments. One of the agreements was attached to one of the policies and the other to the other. The agreements were identical, except as to the number of the policies, each agreement being attached to the policy numbered according to the number designated in the agreement.

One of the provisions of the trust agreements was that if the testator changed the beneficiary in either policy both trusts should be void. After the trust agreements were executed a son was born to the testator. Thereafter the testator changed the beneficiary in one of the policies, designated No. 8,979,228, as follows: to this son 6/10ths, to a step-son 3/10ths and to another son 1/10th. This under the provision above referred to voided both trust agreements.

Upon the death of the testator both policies were paid to the widow, one to her as guardian of the sons and step-son above referred to, who are minors, and the other payable to her as executrix to be distributed according to the will. There is no...