Haese's Estate, In re

• Decision Date: 01 November 1977
• Docket Number: No. 75-607,75-607
• Citation: 259 N.W.2d 54,80 Wis.2d 285
• Parties: In re ESTATE of Louise G. HAESE, Deceased. Leslie THOMPSON, Ned Haese and Mark Haese, Appellants, v. Paul ALLAERT, personal representative, Estate of Louise G. Haese, Deceased, Rosemary Winn, Gilbert Egan, Wayne and James Gibson, Violetta Phalen, and Bess Cole, Respondents.
• Court: Wisconsin Supreme Court

Page 54

259 N.W.2d 54

80 Wis.2d 285

In re ESTATE of Louise G. HAESE, Deceased.

Leslie THOMPSON, Ned Haese and Mark Haese, Appellants, v. Paul ALLAERT, personal representative, Estate of Louise G.

Haese, Deceased, Rosemary Winn, Gilbert Egan,

Wayne and James Gibson, Violetta Phalen,

and Bess Cole, Respondents.

No. 75-607.

Supreme Court of Wisconsin.

Argued Oct. 5, 1977.

Decided Nov. 1, 1977.

The order appealed from held a nephew by marriage is not a relative of the testatrix within the meaning of sec. 853.27, Stats., the anti-lapse statute.

David L. Walther, Milwaukee (argued), for appellants; John Sundquist and Walther & Halling, Milwaukee, on the brief.

Harlow J. Hellstrom, Milwaukee (argued), for respondents; Harlow J. Hellstrom Ltd., Milwaukee, on the brief; Thomas J. Marola, Milwaukee, of counsel.

BEILFUSS, Chief Justice.

The testatrix, Louise G. Haese, executed the will in question on August 4, 1965. She died on June 4, 1974. The will was admitted to probate on July 19, 1974.

This review calls for the construction of the phrase "relative of the testator" as it appears in the present (1973) anti-lapse statute, sec. 853.27. ¹ Prior to 1973 the questioned phrase was "child or other relation of the testator." ²

The will of the testatrix, Louise G. Haese, provided;

"SEVENTH: I give and bequeath the sum of FIVE THOUSAND ($5000.00) Dollars to LESLIE HAESE, a nephew of my deceased husband, ADOLPH H. HAESE."

Leslie Haese died on August 29, 1969. The testatrix died on June 4, 1974. Leslie Haese was not a blood relative of the testatrix he was a nephew of the testatrix' husband and therefore a relative through marriage. The appellants, Mark Haese, Leslie Thompson and Ned Haese, are children of Leslie Haese.

The respondent, Paul Allaert, was appointed the personal representative. In that capacity he filed petitions in the probate court to construe the will. He sought an interpretation of the paragraph making the bequest to Leslie Haese and in the event it was determined this legacy lapsed then a construction of the residuary clause.

The trial court concluded that Leslie Haese was not a relative within the meaning of the present anti-lapse statute. His opinion was based primarily upon our early case of Cleaver v. Cleaver, 39 Wis. 96 (1875), which held the anti-lapse statute applied only to blood relatives.

At the time of the Cleaver decision, and until recently, the anti-lapse statute referred to "any child or other relation" as contrasted to the present language of "any relative."

In Cleaver the court relied, in part, on the doctrine of noscitur a sociis it is known from its associates to limit "other relation" to blood relatives because of its association in this statute with "child." Our present statute omits the word "child" and sets forth only "any relative;" therefore the doctrine of noscitur a sociis no longer applies.

Cleaver was nonetheless determined to be persuasive because its construction of the word "relation" apart from noscitur a sociis. The opinion states:

"The word, relation, was perhaps unfortunately used in the section, because it is in itself indefinite. But there had fortunately been a uniform line of decisions, extending through more than a century, before the section was adopted here, which confined the word used in bequests, to relations by blood, and made it virtually equivalent to kindred. . . . Those cites all proceed upon the necessity of limiting the indefinite sense of the word, relations; limit it by the statute of distributions to kindred; and determine not only the degrees of relation, but the kind also, that is by consanguinity. Such an unbroken series of decisions for nearly a century and a half appears to us conclusive of the construction of the word, applied to wills, as used in the statute. R.S., ch. 5, sec. 1, subd. 1. They warrant us to apply the language of Lord THURLOW in Raynor v. Mowbray : 'If it was a recent matter, there might be a doubt; but . . . . when once a rule has been laid down, it is best to abide by it. We cannot always be speculating what would have been the best decision in the first instance.'

"This view would control our construction; . . . " Cleaver, 30 Wis. at 100-102.

Appellants assert that "relative" in sec. 853.27(1), Stats., must be given its common and ordinary meaning. ³ When no explicit definition is provided, the general rule of sec. 990.01(1) provides:

"General Rule. All words and phrases shall be construed according to common and approved usage; but technical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning."

The ordinary and common meaning of a word may be established by its definition in a recognized dictionary. ⁴ The ordinary meaning of the word "relative" is a person connected with another by blood or affinity. Webster's Third International Dictionary, p. 1916. However Webster's qualifies this by stating that this is especially true when persons are connected by blood. Black's Law Dictionary (4th ed. 1957, p. 1453) defines "relative" as: "A kinsman; a person connected with another by blood or affinity." On the other hand, Black's defines "relation" as: "A relative or kinsman; a person connected by consanguinity," p. 1452. See also Cleaver v. Cleaver, 39 Wis. at 99, where the court stated: "Relation, in this use, is a very indefinite word, which has often perplexed courts."

Thus, while there is general agreement that a relative is one connected by blood or affinity, the dictionaries indicate that in some cases consanguinity may be the key. We conclude the term is ambiguous.

The meaning of ambiguous wording in a statute may be sought by reference to materials outside the language of the statute which are indicative of legislative intent. ⁵ An ambiguous statute, phrase, or word is one which is capable of being interpreted by reasonably well informed persons in either of two or more senses. This means that there must be more than simple disagreement. The test is whether well informed persons could have become confused. ⁶

The word "relative" may be construed as being relative by blood on the basis that it has achieved a peculiar meaning in the law. As such it would fall within an exception to the common meaning rule of sec. 990.01(1), Stats. Practically all of the courts of the nation which have considered the problem, as well as Wisconsin, have consistently held "relative," "relation," or similar variants used in an anti-lapse statute, to mean exclusively relatives by blood. ⁷

Although appellants contend that reliance upon Cleaver and other cases to prove that "relative" means blood relative is misplaced, these cases and authorities, at least at this point, stand for the position that the term is subject to a restrictive and peculiar meaning and is ambiguous.

The respondents contend that sec. 853.27(1), Stats., is a restatement of the prior law and that decisions construing sec. 238.13 are controlling.

This court has recognized that the mere repeal and re-enactment of "substantially the same section does not overrule the prior court interpretations." Bruner v. Dept. of Revenue, 57 Wis.2d 70, 76, 203 N.W.2d 663, 666 (1973). However:

"Generally, the studied omission of a word or words in the re-enactment or revision of a statute indicates an intent to alter its meaning." Pittman v. Lieffring, 59 Wis.2d 52, 64, 207 N.W.2d 610, 615 (1973).

The omission of the word "child" in the new statute, which was important in Cleaver as the basis for the noscitur a sociis analysis, thus appears to indicate that the cases interpreting the prior anti-lapse statute cannot be blindly followed as authority on the new section. Otherwise, however, the provisions of secs. 238.13 and 853.27(1), Stats., are practically identical.

On the other hand, the Cleaver court did not rely exclusively on noscitur a sociis to reach its decision as set forth above.

But appellants argue, one hundred years later, that the Cleaver analysis was in error. According to appellants, the court erroneously applied the principles of will construction when it should have applied the principles of statutory construction. This claim is buttressed by the language in Cleaver, quoted above, that the decisions cited in support of the restrictive meaning had interpreted the word as "used in bequests" and that these decisions are "conclusive of the construction of the word, applied to wills, as used in the statute."

The primary object of interpreting a will is to ascertain the testator's intent, ⁸ while the purpose of statutory construction is to ascertain the legislative intent. ⁹

It is appellants' position that the rule of will construction which reads "relative" as blood relative was misused by the Cleaver court and that this court should not compound the error by following suit.

It was not improper for the Cleaver court to make reference to the construction of wills in construing a statute of this type. When seeking the legislative intent, the statute may be analyzed by reference to its scope, history, purpose or object, and subject matter. ¹⁰ The subject of the statute was, and is, intimately connected with will construction. The rules are, or can be presumed to be, well known, and it would be reasonable for a court to conclude that the legislature had them in mind when it created the anti-lapse statute.

Additionally, a court interpretation of a statute becomes a part of that statute; it is the duty of the legislature to act if it disagrees. ¹¹ The fact that the legislature waited for almost one hundred years to take any action which could be construed as overruling the Cleaver interpretation militates against appellants' contention that the restrictive definition was improper and bore no relation to legislative intent.

Cleaver has become a case of national importance on the subject of anti-lapse and is cited in many cases for the proposition that a "relative" or "relation" within the...