Gaughen v. Gaughen

• Decision Date: 01 December 1961
• Docket Number: No. 34881,34881
• Citation: 112 N.W.2d 285,172 Neb. 740
• Parties: Harold M. GAUGHEN, Mamie Gaughen, Appellants, v. Leonard GAUGHEN et al., Appellees, Impleaded with Alice Joan Emanuel and Rita A. Gaughen, Appellants.
• Court: Nebraska Supreme Court

Page 285

112 N.W.2d 285

172 Neb. 740

Harold M. GAUGHEN, Mamie Gaughen, Appellants, v. Leonard GAUGHEN et al., Appellees, Impleaded with Alice Joan Emanuel and Rita A. Gaughen, Appellants.

No. 34881.

Supreme Court of Nebraska.

Dec. 1, 1961.

Syllabus by the Court.

1. In searching for the intention of the testator the court must examine the entire will, consider each of its provisions, give words their generally accepted literal and grammatical meaning, and indulge the presumption that the testator understood the meaning of the words used.

2. The intention of the testator as determined from the will must be given effect if it is not inconsistent with any rule of law.

3. The intention within the ambit of this rule is the one expressed by the testator by the language employed in his will and does not refer to an entertained intention not expressed therein.

4. A patent ambiguity in a will must be removed by interpretation according to legal principles and the intention of the testator must be found within the four corners of the will.

5. Where the language in a will shows a different intention is effectively manifested, section 76-117, R.R.S.1943, relating to cross-remainders, is not applicable.

6. The presumption of a per capita distribution is not a strong one and is easily overborne. It will yield to a very faint glimpse of a contrary intention in the context, or a contrary intention deduced from a study of the will as a whole.

7. Under the language in the will here considered the testator devised three life estates, each life estate consisting of a one-third interest in the testator's property, to his two sons and a daughter and to their spouses. In the event any of the spouses remarried, his life estate in the property would be eliminated. The fee descends in thirds at three distinct times, the death of the survivor of each son and his wife, and the death of the survivor of the daughter and her husband. The grandchildren then would take their father's share per stirpes. Should the testator's daughter die without leaving natural-born children surviving her and her husband, then the children of the two sons of the testator would take their share of their aunt's one-third interest in the testator's property per capita.

8. Insofar as our opinion reported in 171 Neb. 763, 107 N.W.2d 652, is in conflict with this opinion, it is hereby overruled.

William G. Line, Fremont, for appellants.

Edward Asche, George E. McNally, Schuyler, for appellees.

Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

MESSMORE, Justice.

This case involves the construction of the will of Martin F. Gaughen, deceased. Harold M. Gaughen is a son of the deceased and is referred to in certain paragraphs of the will as Harold Gaughen. Mamie Gaughen is the wife of Harold Gaughen. Leonard Gaughen is a son of the deceased, and Thelma Gaughen is the wife of Leonard Gaughen. Marie Mundy is a daughter of the deceased, and her husband is Leo Mundy. Alice Joan Emanuel is a daughter of Harold Gaughen and the wife of Dennis Emanuel. Rita A. Gaughen is a daughter of Harold Gaughen. Martin F. Gaughen, Charles E. Gaughen, Thomas P. Gaughen, Kathryn Jean Gaughen, and Kenneth G. Gaughen are the children of Leonard and Thelma Gaughen. The above-named persons constitute the sole persons interested in the estate of the deceased.

The appellants contend that the deceased intended by his last will and testament that certain described real estate be disposed of as follows: An undivided one-third interest therein to descend for life to Leonard Gaughen and Thelma Gaughen, or the survivor, an undivided one-third interest for life to Marie Mundy and Leo Mundy, or the survivor, and an undivided one-third interest for life to Harold Gaughen and Mamie Gaughen, or the survivor. It was further contended that after the death of the above parties, it was the testator's intention that the remainder interest in said real estate was to go in fee simple as follows: An undivided one-third interest in said real estate to the children of Leonard Gaughen, an undivided one-third interest to the children of Harold Gaughen, and the remaining undivided one-third interest, upon the passing of the survivor of Marie Mundy and Leo Mundy to the living children of Harold Gaughen and Leonard Gaughen, share and share alike, that is, if no natural-born children of Marie Mundy and Leo Mundy survive them.

In an amended petition the plaintiffs alleged that a patent ambiguity appeared in paragraph 2 of the will, which will be referred to in the opinion.

The guardian ad litem of Charles E. Gaughen, Thomas P. Gaughen, Kathryn Jean Gaughen, and Kenneth G. Gaughen, minors, alleged by way of cross-petition that by the terms of the last will of the testator he intended to and did devise his real estate to the children of his sons Leonard Gaughen and Harold Gaughen, and the children born naturally to his daughter Marie Mundy, share and share alike, or per capita, and not per stirpes, subject only to the life estates therein to Harold Gaughen, Leonard Gaughen, Marie Mundy, Mamie Gaughen, Thelma Gaughen, and Leo Mundy; and that there was neither a latent nor patent ambiguity in said will.

Martin F. Gaughen filed an answer and cross-petition wherein he prayed that the petition and amended petition of the plaintiffs be dismissed; and that the court make a determination that no ambiguity, either latent or patent, existed in the last will and testament of the testator, and by the terms thereof the testator devised his real estate to the children of Leonard Gaughen and Harold Gaughen and the children born naturally to Marie Mundy, in equal shares, per capita and not per stirpes, subject only to the life estated therein of the parties as heretofore named.

The trial court rendered judgment finding that the will did not contain either a latent or a patent ambiguity, and that the testator intended to devise the entire remainder per capita, and not per stirpes.

The plaintiffs Harold Gaughen and Mamie Gaughen, and defendants Alice Joan Emanuel and Rita Gaughen filed a motion for new trial which was overruled. An appeal was taken to this court by Harold Gaughen and Mamie Gaughen, plaintiffs, and Alice Joan Emanuel and Rita Gaughen, defendants.

The part of the will necessary to be construed in this case is as follows: 'Second. I give and devise to my sons Harold Gaughen and Leonard Gaughen and my daughter Marie Mundy or to their spouses Mamie Gaughen, Thelma Gaughen and Leo Mundy, respectively, during their natural lives (description of the land omitted) * * * Dodge County, Nebraska; and in the event any of the spouses Mamie Gaughen, Thelma Gaughen or Leo Mundy should remarry, their life estate in the above described real-estate shall cease; and upon the death of said life tenants or the remarriage of my children's spouses, Mamie Gaughen, Thelma Gaughen and Leo Mundy, I give and devise the remainder of said real estate to the children of my son Leonard and the children of my son Harold, share and share alike and to the children born naturally of my daughter, Marie Mundy, if any, and in the event no children are born naturally to my daughter Marie, then I give and devise their share in said above described real estate to the children of my sons Harold and Leonard, share and share alike.'

Our opinion reported in 171 Neb. 763, 107 N.W.2d 652, holds that the remainder estate goes to the children of Leonard Gaughen and Harold Gaughen, and the natural-born children of Marie Mundy, share and share alike, or per capita, and not per stirpes, and that the decree should be modified to provide that all of the children of Harold Gaughen and Leonard Gaughen and the issue of Marie Mundy share in the remainder estate as a single class per capita, which class shall be subject to being opened to admit additional children of Harold Gaughen and Leonard Gaughen and issue of Marie Mundy.

When this case was first argued and submitted to this court the appellants did not set forth their contention as follows: Where land is conveyed or devised to several persons for life and at 'their death' to 'their children,' the phrase 'their death' will be read 'their respective deaths' and the phrase 'their children' will be read 'their respective children.' Consequently, this court did not have the opportunity to pass upon the issue now raised by the appellants in their motion for rehearing.

The will is not artfully drawn, its provisions are carelessly expressed, and it is patently ambiguous.

The question to be determined on this appeal is whether the grandchildren take per capita or whether they take per stirpes.

Distribution per capita is an equal division of the property to be divided among the beneficiaries, each receiving the same share as each of the others, without reference to the intermediate course of descent from the ancestor. Distribution per stirpes is a division with reference to the intermediate course of descent from the ancestor. It gives the beneficiaries each a share in the property to be distributed, not necessarily equal, but the proper fraction of the fraction to which the person through whom he claims from the ancestor would have been entitled. See Kramer v. Larson, 158 Neb. 404, 63 N.W.2d 349.

There are certain rules of law that govern the manner in which a will is to be construed.

In searching for the intention of the testator the court must examine the entire will, consider each of its provisions, give words their generally accepted literal and grammatical meaning, and indulge the presumption that the testator understood the meaning of the words used. Jacobsen v. Farnham, 155 Neb. 776, 53 N.W.2d 917, 33 A.L.R.2d 543; Kramer v. Larson, supra.

The intention of the testator as determined from the will must be given effect if it is not inconsistent with any rule of law. Jacobsen v. Farnham, supra; Kramer v. Larson, supra.

The intention within the ambit of...