Hoermann v. Hoermann (In re Hoermann's Estate)

• Decision Date: 12 March 1940
• Citation: 234 Wis. 130,290 N.W. 608
• Parties: In re HOERMANN'S ESTATE. HOERMANN v. HOERMANN.
• Court: Wisconsin Supreme Court

234 Wis. 130

290 N.W. 608

In re HOERMANN'S ESTATE.HOERMANN

v.HOERMANN.

Supreme Court of Wisconsin.

March 12, 1940.

Appeal from a judgment of the County Court of Jefferson County; W. C. O'Connell, Judge.

Affirmed.

In the Matter of the estate of Caroline Hoermann, deceased.

These proceedings were initiated by the petition of Elsa L. Hoermann, widow of Ernst Hoermann, deceased, for construction of the will of Caroline Hoermann, deceased. Testatrix died on May 27, 1938. Ernst J. Hoermann, her son, predeceased her, his death occurring May 11, 1938. The will of testatrix contained the following clauses as to which construction was asked:

“Twentieth: I give and bequeath to my son, Ernst J. Hoermann, the sum of One Thousand Dollars ($1,000) as a specific legacy, to have and to hold the same unto him and his heirs and assigns forever. I am making this specific bequest to my son, Ernst J. Hoermann, for the reason that my other sons have had advancements made to them for their education and professional training in excess of that given and advanced to my said son, Ernst J. Hoermann, and for the reason that the education and professional training of my said son, Ernst J. Hoermann, has cost considerable less than that of my other sons.

“Twenty-first: I further give and bequeath to my said son, Ernst J. Hoermann, the sum of One Thousand Dollars ($1,000), as a specific legacy, this being in addition to the sum of One Thousand Dollars ($1,000) given to him under the subdivision ‘Twentieth’ of this will. I make this additional bequest to my said son Ernst J. Hoermann to partially reward and compensate him for his time and services in taking care of my late husband's estate, and for attending to and taking care of personal matters and my personal estate since the decease of my said husband.

“Twenty-fourth: All the rest, residue and remainder of my estate, both real and personal, and of every kind, nature and description, I give, bequeath and devise, in equal shares, to my daughters, Bertha Harders, Hedwig Melzer, Frieda Shinnick, Selma Spitzer, and Adele Clark, and to my Bernard Hoermann, and Ernst J. Hoermann, to have and to hold the same, unto them, share and share alike, and to their respective heirs and assigns forever.”

The trial court held that the bequests in paragraphs 20 and 21 lapsed, but that in paragraph 24 there was a substitutionary gift to petitioner Elsa L. Hoermann. Alfred Hoermann, administrator de bonis non of the estate of Caroline Hoermann, appeals from that portion of the judgment adjudging that the gift in paragraph 24 did not lapse. Petitioner cross appeals from and moves to review that portion of the judgment which holds that the gifts in paragraphs 20 and 21 lapsed.

Adolph G. Schwefel, to Milwaukee, for appellant.

Mayer, Vandercook, Wilde & Rice, of Milwaukee (Walter F. Mayer, of Milwaukee, of counsel), for respondent.

WICKHEM, Justice.

It is the contention of the administrator (a) that the words “and his heirs and assigns forever” as used in the twentieth paragraph of the will are words of limitation and not of substitution; (b) that paragraph 21 in which the testatrix did not attach to the gift the words above quoted contains no indication of an intention to substitute the heirs of Ernst J. Hoermann for him; (c) that the gift in paragraph 24, the residuary clause, to testatrix' named daughters and sons “share and share alike and to their respective heirs and assigns forever” evidences no purpose to use the quoted phrase as words of substitution. Petitioner concedes that ordinarily the words “heirs and assigns” are construed as words of limitation but contends that where the will contains an indication of an intention to use these words to create a substitutionary gift, that intention should be given effect; that in most of the cases where the phrase has been considered to limit the estate, the devisee has been a mere friend or stranger in blood and that the construction should be otherwise where the legatee or devisee is a son or near relative. It is also contended that when these words are used in a residuary clause, they are normally construed as words of substitution; that the law does not presume or favor joint tenancies and a devise or bequest in a residuary clause to two or more persons is conclusively presumed to be to them as tenants in common unless the intent to create a joint tenancy is clearly expressed; that there are no words in the twenty-fourth paragraph expressly creating a joint tenancy; that in consequence a lapse would produce an intestacy; that when the testatrix used the phrase “share and share alike” she intended her residuary estate to be divided equally among all her children and her heirs, giving “heir” the normal meaning of those who would be entitled to inherit her children's estate under the laws of intestacy; that the phrase “their respective heirs” relates to the heirs of the decedent named and conclusively shows a substitutional intent.

At the outset, we deem it convenient to dispose of the intimation in the administrator's brief that sec. 238.13, Stats., has some bearing upon this case. This section provides as follows: “When a devise or legacy shall be made to any child or other relation of the testator and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will in the same manner as the devisee or legatee would have done if he had survived the testator unless a different disposition shall be made or directed by the will.”

[1]It is plain that this section does not prevent a lapse since Ernst Hoermann left no issue. The question is whether inferentially the section provides for a lapse in all other situations. We think not. The section simply prevents a lapse in the cases to which it refers. It was not designed to have any further effect.

[2][3]The twenty-first paragraph was properly construed by the trial court. There are no words in this paragraph which could be argued to constitute words of substitution and we discover no circumstance or provision that supplies the want. Paragraph 20 offers more difficulties but we are of the view that the trial court's conclusions with respect to this paragraph were also correct. Presumptively, the words “unto him and his heirs and assigns forever” are words of limitation. It is true as pointed out in In re Evans' Will, 234 N.Y. 42, 136 N.E. 233, 234, that the use of this phrase in connection with a gift of personal estate “is not a term of art, as it is in a devise of real estate. Its office as a word of limitation, however natural or presumptive where the subject-matter of the gift is land, is by analogy only, and one that is...