Gaughen v. Gaughen

• Decision Date: 24 February 1961
• Docket Number: No. 34881,34881
• Citation: 171 Neb. 763,107 N.W.2d 652
• Court: Nebraska Supreme Court
• Parties: Harold M. GAUGHEN & Mamie Gaughen, Appellants, v. Leonard GAUGHEN et al., Appellees, Impleaded with Alice Joan Emanuel and Rita A. Gaughen, Appellants.

Page 652

107 N.W.2d 652

171 Neb. 763

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.

Feb. 24, 1961

Syllabus by the Court

1. The court, in construing a will, is required to give effect to the true intent of the testator to the extent it can be ascertained from the whole instrument, if such intent is consistent with applicable rules of law.

2. A patent ambiguity in a will is one which appears upon the face of it. Such an ambiguity must be removed by interpretation according to legal principles and not by evidence, and the intention of the testator must be found within the four corners of the will.

3. A bequest or devise to the children of two or more persons is distributed per capita unless a different intention is otherwise indicated in the will.

William G. Line, Fremont, for appellants.

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

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

BOSLAUGH, Justice.

This is an action to construe the will of Martin F. Gaughen, deceased.

Martin F. Gaughen was survived by three children, Harold M. Gaughen, Leonard Gaughen, and Marie Mundy. Harold M. Gaughen has two children, Leonard Gaughen has five children, and Marie Mundy has no children.

Harold M. Gaughen and his wife were the plaintiffs in the lower court. Leonard Gaughen, his wife and children, Marie Mundy and her husband, and the children, and the husband of one child, of the plaintiffs were the defendants.

The petition as amended requested a construction of that part of the will which made a devise of 240 acres of farmland in Dodge County, Nebraska. That part of the will, with the description of the property omitted, reads as follows: '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 omitted); 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.' The other provisions contained in the will have been omitted from the opinion because they are of no assistance in the construction of the portion quoted above. The parties do not contend otherwise.

The plaintiffs alleged that the will devised an undivided one-third interest in remainder to the children of Leonard Gaughen, an undivided one-third interest in remainder to the children of Harold M. Gaughen, and an undivided one-third interest in remainder to the natural-born children of Marie Mundy; and that in the event no children were born naturally to Marie Mundy, a one-third interest in remainder was to be distributed to the children of Harold Gaughen and Leonard Gaughen, share and share alike.

Alice Joan Emanuel, who is a daughter of the plaintiffs and is of age, and her husband filed a voluntary appearance in which they admitted the allegations of the petition and joined in its prayer.

Martin F. Gaughen, who is a son of Leonard Gaughen and is of age, filed an answer and cross-petition which alleged that the will was not ambiguous and provided for a per capita distribution of the remainder interest among the grandchildren of the testator. A similar answer and cross-petition was filed by the guardian ad litem for the other four children of Leonard Gaughen who are minors.

The trial court held that the will devised the remainder interest to the children of Leonard Gaughen, Harold Gaughen, and the natural-born children of Marie Mundy, share and share alike, or per capita and not per stirpes. From that decree Harold M. Gaughen and his wife and children have appealed.

The question presented is whether the remainder interest devised to the grandchildren of the testator is to be distributed per capita or per stirpes.

The following statement from Dumond v. Dumond, 155 Neb. 204, 51 N.W.2d 374, 375, is applicable here: 'In construing a will a court is required to give effect to the true intent of the testator insofar as it can be collected from the whole instrument, if such intent is consistent with applicable rules of law. Bodeman v. Cary, 152 Neb. 506, 41 N.W.2d 797; Dennis v. Omaha National Bank, 153 Neb. 865, 46 N.W.2d 606, Extrinsic evidence is not admissible to determine the intent of the testator as expressed in his will unless there is a latent ambiguity. Borah v. Lincoln Hospital Ass'n, 153 Neb. 846, 46 N.W.2d 166. Such evidence is not admissible to determine the intent of the testator where the ambiguity is patent and not latent. In re Estate of Pfost, 139 Neb. 784, 298 N.W. 739. A patent ambiguity is one which appears upon the face of the instrument. It must be removed by construction according to settled legal principles and not by evidence, and the intention of the testator is to be determined from the four corners of the will itself. The controverted...