Gray's Estate, In re

• Decision Date: 01 December 1953
• Citation: 265 Wis. 217,61 N.W.2d 467
• Parties: In re GRAY'S ESTATE. GRAY, v. GURRAN et al.
• Court: Wisconsin Supreme Court

Page 467

61 N.W.2d 467

265 Wis. 217

In re GRAY'S ESTATE GRAY, v. GURRAN et al.

Supreme Court of Wisconsin.

Dec. 1, 1953.

Proceeding to construe a will.

Bert L. Gray died testate on May 27, 1952, survived by his widow Mildred Gray and by three sisters. He at no time had any child or children by birth or adoption. On July 1, 1952, the last will and testament of Bert L. Gray, bearing date of November 8, 1944, was admitted to probate in the county court of Juneau county without objection. Paragraphs 3 and 4 of said will provided as follows:

'3. I herewith give, devise and bequeath unto my wife, Mildred Gray, the share of my estate which she would receive under the law if I died intestate.

'4. I herewith give, devise and bequeath all of the rest and residue of my estate to my three sisters, Ida Smith of the Town of Lisbon, Juneau County, Wisconsin; Luella Gallaher of New York State and Della Moffett of Minneapolis, Minnesota, in equal shares, share and share alike, and to their heirs and assigns forever.'

On December 30, 1952, the executor of the will filed a petition for construction of paragraphs 3 and 4 of the will. A hearing was held upon such petition and testimony was taken. The following facts were brought out in such testimony: Mr. and Mrs. Gray were married on August 24, 1943, and at the time of their marriage he was 68 and she was 33 years of age. They resided together as man and wife for approximately four months, at which time Mildred Gray left the home and did not return. On March 20, 1944, Bert L. Gray commenced an action for divorce against his wife and she filed a counterclaim for divorce dated October 5, 1944. The divorce action was then dropped at the request of Bert L. Gray. While the parties never again resided together after the dropping of the divorce action, during periods when Mildred Gray was unemployed Bert L. Gray contributed toward her support, and in 1949 provided $1,400 with which to purchase an automobile for her.

At such hearing on the petition for construction of the will, the attorney who had drafted the will was permitted to testify over objection, as to both the competency of the witness and the relevancy and materiality of the testimony, about a conversation had between such attorney and Bert L. Gray at the time of drafting the will on November 8, 1944. This attorney testified that testator expressed a wish to leave no part of his estate to his wife, but that the attorney informed him 'if he didn't make a provision for her, she would take the share that was provided by Statute for her; he should give her the Statutory allowance that she would be entitled to; the rest of his property, if he wanted it to go to his sisters, that could be done'; and that testator instructed him to draft his will in accordance with the suggestions so made by the attorney.

Under date of April 10, 1953, the trial court entered an order construing the will, which order provided as follows:

'It Is Ordered, Adjudged and Decreed, that the said testator Bert L. Gray intended to dispose of his estate and did dispose of the same in the following manner: To the widow, Mildred L. Gray, is entitled only to her dower and homestead rights in the estate of her husband, such being the testator's intent as expressed in the third paragraph of his Last Will and Testament; that it was the testator's intent to bequeath and devise the residue of his estate to his sisters according to the provisions of the fourth paragraph of his last Will and Testament.'

A memorandum opinion was also filed by the trial judge in which authorities were quoted and reasons advanced for the conclusion reached in the foregoing order.

From said order construing the will, Mildred Gray has appealed

Walker & Taylor, Portage, for appellant.

Brazeau & Brazeau, Wisconsin, Rapids, for respondents.

Curran & Curran, Mauston, for respondent executor.

CURRIE, Justice.

Testator bequeathed to his wife 'the share of my estate which she would receive under the law if I died intestate'. The trial court has in effect construed this language as if it read: 'such homestead rights in my homestead and right of dower in my remaining real estate as she would receive if she elected to take under the law instead of this will'. It will be noted that the trial court's construction provides for the widow receiving no part of the personal property of the deceased. However, the petition for probate alleges that the personal estate only had a value of $1,500. Therefore, it is possible that the personal estate will be entirely consumed in the payment of funeral expenses, administration expenses, and debts.

The wording of the residuary clause of testator's will indicates that he considered there was a residue of his estate left undisposed of by the bequest and devise to his wife which would go to his three sisters. This is so because the residuary clause is not made contingent upon any failure of the bequest to the wife, such as occasioned by her prior death. Furthermore, the surrounding circumstances such as the short period the parties had lived together and the institution of divorce proceedings and the filing of the counterclaim (which filing of the counterclaim occurred approximately one month prior to the drafting of the will), would also tend to indicate that he did not intend that his wife should receive his entire estate.

If we consider the testimony of the attorney who drafted the will, it is apparent that the wording of the bequest to the wife was the result of mistake, as the attorney did not intend to provide that the wife should take the share of the estate which she would receive under the intestacy laws of the state, but only that part of the estate which she would receive if she elected to take under the law, instead of under the will.

The problem which confronts us on this appeal, therefore, is not whether the construction placed upon the will by the learned trial judge is in accordance with the intent of the testator, but rather whether such attempted construction would amount to a reformation of the will.

The well accepted general rule is that courts, in construing wills, do not have power to reform the same even in the case of an obvious mistake on the part of the testator, as they do in the case of such instruments as contracts and deeds. 4 Page on Wills (lifetime ed.), 583, § 1604; 57 Am.Jur., Wills, 273, § 375; and Annotation 94 A.L.R. 26, at p. 65. It makes no difference that the mistake was occasioned by the oversight or inadvertence of the draftsman of the will. 57 Am.Jur., Wills, 680, § 1046; Annotation 94 A.L.R. 26, at page 70.

This general rule is well stated in O'Hearn v. O'Hearn, 1902, 114 Wis. 428, 432, 90 N.W. 450, 451, 58 L.R.A. 105, as follows:

'The dominating rule in construing wills is that the intention of the testator is to be ascertained from the words used, in the light of all surrounding circumstances, and that intention given effect. In re Donges' Estate, 103 Wis. 497, 79 N.W. 786. The court cannot reform the will by changing its language or add provisions not written therein. It can only construe the instrument as written. Sherwood v. Sherwood, 45 Wis. 357.' (Emphasis supplied.)

It seems clear that testator's words 'share of my estate which she would receive under the law if I died intestate' cannot be construed to mean 'share of my estate which she would receive under the law if she elected to take under the law instead of under the will', without transgressing the above stated rule that a court cannot reform a will by changing its language but can only construe the language as written.

The opinion of this court in the case of Will of Pfeiffer, 1939, 231 Wis. 117, 285 N.W. 432, 433, is illustrative of a true construction of language of a will, as distinguished from reformation. Testator in that case also was survived by a widow but no issue, and by his will he bequeathed to his wife 'all that part of my estate which would legally go to her according to the statutes provided therefor' and then he bequeathed the residue in seven equal parts to other relatives. Mr. Justice Nelson, in the opinion of the court, pointed out that there were two sets of statutes making provision for a widow, viz., one being the statute determining the widow's rights to the estate in the event of the husband dying without a will, and the other being the statute which governs the rights of the widow to the estate in the event the husband dies testate but she elects to renounce the will and take under the law. The conclusion reached was that testator's words 'according to the statutes provided therefor' had reference to the last mentioned statutes governing a widow's rights in the event of her election to take under the law instead of under the will rather than to the intestacy statutes.

The facts in Will of Pfeiffer, supra, are readily distinguishable from the case at bar. The words used by testator 'according to the statutes provided therefor' in the Pfeiffer Case, in describing the bequest to his widow, were ambiguous in that they could refer to either of two sets of statutes. In the instant case testator Gray's words 'under the law if I died intestate' are not ambiguous, and in order to give them any other meaning than their plain import would require changing such words, and in so doing a court would be reforming the will rather than construing it.

Counsel for respondents cite the case of Will of Bresnehan, 1936, 221 Wis. 51, 265 N.W. 93, 94, as supporting the conclusion reached by the trial court in the case at bar. Testator in that case was survived by his widow, and by John Bresnehan, whom he thought to be his legally adopted son. By his will testator bequeathed and devised to his widow 'all that part of my estate to which she is entitled under and by virtue of the laws of the State of Wisconsin, the same as though no will had been by me made.' He then bequeathed his homestead, subject to the homestead and dower...