In re Boeck's Estate

Decision Date16 April 1915
Citation152 N.W. 155,160 Wis. 577
PartiesIN RE BOECK'S ESTATE. APPEAL OF BOECK.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from a Judgment of the Circuit Court for Waushara County; Byron B. Park, Circuit Judge. Reversed.

William Boeck died testate October 13th, 1912. He had owned continuously, up to that time, for many years, South Half of North West Quarter of Section 13, Township 18, Range 12 East in Waushara County, Wisconsin, the east forty of which was his homestead. He never owned any other land in said quarter section. The west forty which he owned is the subject of this action. He was sixty-nine years old at the date of the will. He was survived by eight children. All were named as beneficiaries. There was no residuary clause in the will. All the property, by specific mention, was distributed among the survivors except the forty acres involved in the action. To Herman August Boeck he, in terms, gave the northeast quarter of the northwest quarter of said section 13. Herman was not otherwise remembered on anywhere near the basis of his brothers. The will was duly admitted to probate in Waushara County and, in due course, the estate was assigned. Thereby the southwest quarter of the northwest quarter of said section 13 was dealt with as having been intended for Herman August Boeck. The two daughters appealed to the circuit court, insisting that the forty not mentioned in the will was intestate property. The circuit court, in due course, so held and gave judgment accordingly and awarded the contestants $60.00 as attorney's fees to be paid out of the estate. Judgment was so entered.

Herman August Boeck appealed.

John J. Wood, Jr., of Berlin, for appellant.

Gad Jones and Chas. T. Taylor, both of Wautoma, for respondent.

MARSHALL, J.

[1] There are no two opinions as to what the testator intended. He purposed recognizing his son Herman by giving him the forty acres of land which was not otherwise disposed of by his will, and to burden it with a legacy of one hundred and fifty dollars in favor of his daughter Bertha. That he intended to deal with the land he did not own, and thereby, practically, disinherit both son and daughter, notwithstanding the careful remembrance of them and all other members of his family, would be too absurd to be seriously thought of. This was the view below; but,--influenced by the observation in the editor's note in 6 L. R. A. (N. S.) 977, to Lomax v. Lomax et al., 218 Ill. 629, 75 N. E. 1076, that, “if the will containing the devise * * * contains a complete, accurate description of a tract of land not owned by the testator, and no language whatever pointing in any wise to an intention to devise aother tract which he did own, the devise fails,--it cannot be made to apply to a different parcel by extrinsic evidence; but if, anywhere in the will, there can be discovered words connecting the devise * * * with a tract of land that belonged to the testator, or indicative of his intention by such devise to devise a tract of land owned by him, courts will seize upon such words to make effectual the testator's intended devise,” and, further influenced by expressions, found now and then in judicial writings and encyclopædic codifications of decisions, such as this, now cited to us by counsel for respondent: “Where the will is plain, simple and unambiguous on its face, no evidence of the surrounding circumstances can be admitted,”--the learned circuit judge supposed the judicial hands were so tied to the rock of precedent that they could not be so loosened as to do justice in the particular case.

This is a good illustration of the danger of taking, literally, mere expressions sometimes found in law writings, for a guide. That danger is progressive directly as the volume of such writings increases and, perhaps, want of clearness of expression and tendency to follow precedent instead of principle, increases.

In the literal sense, the second quotation above, taken from 13 Encyclopedia of Evidence, page 504, is, at least, very misleading and likewise the first quotation. If either means that the language of a will which is plain in its words cannot be changed in that respect by characterizing circumstances, and the ambiguity solved by reading the instrument in the light of the entire situation with which the testator dealt, it is wrong. Such a rule would make...

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