Haberli's Estate, In re

• Citation: 163 N.W.2d 168,41 Wis.2d 64
• Parties: In re ESTATE of Ida HABERLI, Deceased. Laura NAUMANN, Appellant, v. Thorval T. TOFT, gdn. ad litem for Luella Haberli, et al., Respondents.
• Decision Date: 20 December 1968
• Court: United States State Supreme Court of Wisconsin

Page 168

163 N.W.2d 168

41 Wis.2d 64

In re ESTATE of Ida HABERLI, Deceased.

Laura NAUMANN, Appellant,

v.

Thorval T. TOFT, gdn. ad litem for Luella Haberli, et al.,

Respondents.

Supreme Court of Wisconsin.

Dec. 20, 1968.

Kaftan, Kaftan & Kaftan, Green Bay, for appellant.

Thorval T. Toft, Sturgeon Bay, for respondents Bank of Sturgeon Bay, gdn. of Luella Haberli, and Thorval T. Toft, gdn. ad litem for Luella Haberli.

HANLEY, Justice.

The following issues are raised on this appeal:

(1) Was the testamentary gift a specific or a demonstrative legacy;

(2) If a specific legacy was created, was it adeemed by extinction; and

(3) Was the testatrix' intention to have all of the children share equally in the estate?

Type of Testamentary Gift.

The testamentary gift to Laura Naumann can only be a specific legacy.

'A specific legacy may be defined as a bequest of a particular, individualized chattel, fund, or portion of the testator's personal estate, which is set apart from the balance of his property and which is differentiated from all other articles or funds of the same or a similar nature. * * *' 57 Am.Jur., Wills, p. 935, sec. 1401.

'A 'specific legacy' is a gift by will of a particular thing, or specified part, of the testator's estate, which is so described as to be capable of being distinguished from all others of the same kind. * * *' 96 C.J.S. Wills § 1125, p. 878.

'* * * words specifically identifying the property and indicative of possession are necessary in the making of a specific bequest. * * *' Will of Blomdahl (1935), 216 Wis. 590, 593, 257 N.W. 152, 153, 258 N.W. 168.

Recall again the words used in Paragraph Three of the will in question:

'I herewith will and bequeath * * * the Five Thousand Dollar ($5000.00) Note owed to me by my daughter, Viola Haberli. This Note is dated September 28, 1955, with interest paid up to date on it. * * *'

The gift is specifically identified and possession is indicated.

Appellant contends, however, that the remainder of Paragraph Three in the will makes the gift a demonstrative legacy.

'A 'demonstrative legacy' is a bequest of a certain sum of money, stock, or the like, payable out of a particular fund or security in such a way as not to amount to a gift of the corpus or evince an intent to relieve the general estate from liability if the particular fund or security fails. * * * Two elements are necessary: (1) It must be an unconditional gift in the nature of a general legacy. (2) The legacy must indicate the fund out of which it is payable. * * *' 96 C.J.S. Wills § 1125, p. 883. See also 57 Am.Jur., Wills, p 937, sec. 1403, and Will of Loewenbach (1936), 222 Wis. 467, 269 N.W. 323.

Appellant contends that the overall debts of Viola Haberli to the deceased made up the 'fund' from which the $5,000 must be paid to Laura. This contention must fail. The legacy in question is not an 'unconditional gift' of $5,000; nor is the existence of the fund which appellant refers to sufficiently established by the language of the will. ¹

The reason that the dispute developed over the type of legacy which is involved here is obvious. Specific legacies are satisfied only by a delivery of the particular item designated. When the particular item is not in the estate when the legacy would become operative, the specific legacy ordinarily has no effect, i.e., it is adeemed by extinction.

A demonstrative legacy, on the other hand, survives as a general legacy even when the particular fund out of which it is payable is not in existence when the legacy would become operative. A general legacy, of course, is satisfied out of the general assets of the estate.

Thus the classification of the legacy involved in this case as a specific legacy would ordinarily mean that the named beneficiary would receive nothing from the provision quoted because the note in question here had been satisfied before the testatrix's death.

Was the Specific Legacy Adeemed by Extinction?

An exception to the general rule that a specific bequest is adeemed by extinction is set out in 96 C.J.S. Wills § 1125, p. 880.

'* * * If the particular thing is not in existence when the bequest would become operative, or is not owned by the testator at the time of his death, the specific legacy has no effect. However, if the property exists in substance and is still owned or controlled by the testator at the time of his death, the intention to bequeath it must be carried out. * * *'

The same rule is stated somewhat differently in 6 Bowe-Parker: Page on Wills, Ademption, p. 260, sec. 54.11:

'If property which is specifically devised or bequeathed remains in existence, and belongs to testator at his death, slight and immaterial changes in its form do not operate as an ademption. * * *'

This court applied this exception to the general rule in Will of Hinners (1934), 216 Wis. 294, 257 N.W. 148. In that case the testator left his wife a specific bequest of 225 shares of his stock in the Geo. H. Smith Steel Casting Company. The company subsequently reorganized and changed both the par value of its stock and the number of outstanding shares. The court found that the thing actually bequeathed was the interest in the Smith Company represented by 225 shares of stock at the time the will was executed.

'* * * As that was a specific legacy, no ademption thereof would result as long as the subject-matter of the legacy was still to be found among the assets of the testator at the time of his death, even though the subjectmatter thereof was somewhat changed in form. * * * Will of Hinners, supra, at page 300, 257 N.W. at page 150.

Appellant argues that this exception controls the instant case. She contends that it was Ida's intention to give her the $5,000 which the note represented, and that the very same $5,000 is now part of the real estate which is in Ida Haberli's estate. It is true that the $5,000 represented by the note formed part of the purchase price for the real estate in Ida's estate. However, the test in Wisconsin, as in most states, is whether the specific item bequeathed is in the estate. The test is not whether the dollar value of the specific bequest can be traced to another asset. A slight change in form does not extinguish a specific bequest, but it is obvious that a $5,000 note is substantially different from a piece of realty.

In Wisconsin there is another exception to the general rule that a specific bequest is adeemed by extinction. In Estate of Lefebvre (1898), 100 Wis. 192, 75 N.W. 971, this court decided that a devise of certain and was not revoked by the subsequent making of a contract for the sale of the land by the testator. In arriving at the result, this court relied upon the fact that only a nominal amount had been paid on the contract. Moreover, R.S. 1878, sec. 2278, (now sec. 238.02(1), Stats.1965) was held to be controlling. Sec. 238.02(1) provides:

'Every devise of land in any will shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.'

The court held in the Lefebvre Case that the devise in the will passed whatever legal and equitable rights the testator had at his death.

This court discussed the Lefebvre Case in Estate of Atkinson (1963), 19 Wis.2d 272, 275, 120 N.W.2d 109, 111:

'The great weight of authority at common law, independent of statute, holds that testator's execution of a will with a specific devise of land and his later sale of this land works an ademption of the devise in his will * * *.'

Nevertheless, this court in the Atkinson Case reluctantly affirmed the court's interpretation of the statute in the Lefebvre Case:

'* * * If we were to pass on the applicability of that statute (sec. 238.02 (1)) without the fetters of the Lefebvre precedent, we would have difficulty in reaching this result. * * *' Estate of Atkinson, supra, at page 277, 120 N.W.2d at page 112.

The reason, of course, that the court had trouble with the Lefebvre Case was that it flew in the face of the equitable conversion doctrine. Under the doctrine, which was very adequately discussed in the Atkinson Case, supra, the testator who devised his land and then subsequently sold it under a land contract no longer had an interest in realty to dispose of. After a land contract is entered into, the vendor has only an interest in personalty.

The only explanation, therefore, of the Lefebvre exception to the general rule of ademption by extinction is that it was based on an applicable statute.

The Lefebvre exception to the general rule on ademption is important to this case because the appellant wants the court to extend the rule of that case. Appellant contends that even if the legacy involved here is specific the proceeds can still be traced to the estate and, therefore, under the doctrine of equitable conversion the bequest is not adeemed.

The point of appellant's contention is not clear. Apparently she feels that the doctrine of equitable conversion 'saved' the specific devises in the Lefebvre and Atkinson Cases. Now she wants the doctrine applied to this case where there was a specific legacy, the proceeds of which can be traced to real estate. This reasoning evidences a complete misunderstanding of the Lefebvre and Atkinson Cases. In those cases the court specifically rejected the doctrine of equitable conversion because of an applicable statute. The application of equitable conversion would...