In re Donges' Estate

• Decision Date: 22 June 1899
• Citation: 103 Wis. 497,79 N.W. 786
• Parties: IN RE DONGES' ESTATE.
• Court: Wisconsin Supreme Court

103 Wis. 497

79 N.W. 786

IN RE DONGES' ESTATE.

Supreme Court of Wisconsin.

June 22, 1899.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Petition by the children of Charles Donges, deceased, for a construction of his will. From an order in effect abrogating the will, certain legatees appeal. Reversed.

On April 11, 1890, Charles Donges, being childless, but his wife then being pregnant, made and executed his will, with the following material provisions: “First. After my just debts and funeral expenses are paid, I give and bequeath to my beloved wife, Clara Donges, all the real estate of which I may die seised, together with the rents, income, and profits thereof; to have and to hold the same until the youngest of my children, if any be born me, shall attain the age of twenty-one years. Second. In case there are no children living at the time of my decease, my said wife shall be the sole owner of my real estate. Third. In case my said wife shall intermarry again, she shall only have her dower interest in my property. Fourth. The household property my wife shall hold absolutely.” Fifth was a bequest of $1,000 to each of four sisters, to be paid one year after decease, and charged upon an undivided half interest in a specified parcel of real estate. Seventh and eighth bequeathed the undivided half interest in the business of Donges Bros., to testator's brother and partner, Jacob Donges, with the proviso that, in case of the death of Jacob before testator, the same should be divided among “my wife and children.” Ninth, in case of the death of the wife without issue, all property bequeathed to her should go to Jacob. Jacob Donges survived the testator, as also the wife, Clara, and two children,--Ella, born July 24, 1890, and Anita, born December 29, 1893. Testator's estate consisted of a share in two or three parcels of real estate, the interest in the firm of Donges Bros., and practically no other personal property. The widow duly elected to take her rights by law, and not by the will. It was shown by extrinsic evidence that probability of children was upon testator's mind at and before the execution of the will; also, that he considered himself under a moral, if not a contractual, pecuniary obligation to his sisters to about the amount of their legacies in the fifth paragraph, for services rendered. Upon petition of the children for construction of the will the county court, and on appeal the circuit court, considered that no provision was made for them, and that it did not appear by the will that the testator intended that no provision should be made, and accordingly adjudged that they were entitled to the same shares as if no will had been made, which resulted in complete abrogation of the will, so that they were entitled each to one-third of all personal property, and each to one-half of all real estate subject to the mother's dower. The sisters, legatees under the fifth provision of the will, prosecute this appeal.Quarles, Spence & Quarles, for appellants.

Winkler, Flanders, Smith, Bottum & Vilas, for respondents.

DODGE, J. (after stating the facts).

Section 2286, Rev. St., is, by its terms, to take effect and confer upon an after-born child the share which he would have had in the event of intestacy when the parent, by his will, makes no provision for such child, unless it is also apparent by the will that he intended to make no provision for him. The first question is, therefore, whether or not provision is made for the two appellants, both born after the making of their father's will, at which time he had no children. The comprehensive and all-dominating rule in construing wills is that the intention of the testator must be ascertained from the words thereof, in the light of all surrounding circumstances, and that intention be given effect. To accomplish this, multitudinous minor rules have been announced, more or less technical, which, however, serve not so much to restrict or constrain the judicial mind as simply to guide and to indicate probabilities in the absence of countervailing considerations. None of them are to be followed blindly if they lead to subversion of what was clearly the intention of the testator. Among these, two are relevant to the present consideration: First, that in case of doubt such construction will be adopted as to support and give effect to the will, rather than to defeat it; secondly, that a testator is presumed to have intended a complete distribution of his estate, and a construction tending to that end will be preferred to one which results in intestacy as to any part. Mann v. Hyde, 71 Mich. 278, 39 N. W. 78;Given v. Hilton, 95 U. S. 591, 594. In the carrying out of this latter rule courts often find themselves constrained to discover an intention to give, by the will, that which is not in fact given by express words, but which, it is clear from the other bequests and devises, it was the intention of the testator to give, as being so clearly implied from the gifts in fact made and the purpose of the will that silence can signify only an omission to state that which was in the testator's mind and intended. These are called devises or bequests by implication. Mr. Schouler (Schouler, Wills, 561) states the general rule: “A devise will be raised by implication under a will where the context requires it, and the devise is not in express terms”; and, after a few illustrations, sums up the subject as follows: “In short, a gift by implication may be presumed wherever the conclusion is irresistible that the testator so intended it.” The will before us contains this language: “I give and bequeath to my wife, Clara Donges, all the real estate of which I may die seised; to have and to hold the same until the youngest of my children, if any be born to me, shall attain the age of twenty-one years. In case there are no children living at the time of my decease, my said wife shall be the sole owner of my real estate.” The question arises at once, what was the intention of the testator as to his real estate if children were born to him and living at the time of his decease, after the youngest attained 21 years of age? Did he or did he not have any intention on the subject when he made his will? To answer this question we may be aided by an examination of the conclusions reached by courts in cases of greater or less similarity. Peat v. Powell, 1 Eden, 479; Hale v. Beck, 2 Eden, 229; Atkinson v. Paice, 1 Brown, Ch. 91; Goodright v. Hoskins, 9 East, 306; Ex parte Rogers,2 Madd. 449; Tomkins v. Tomkins, cited in 1 Burrows, 234; Gardiner v. Stevens, 30 Law J. Ch. 199; Wilks v. Williams, 2 Johns. & H. 125; Tyson v. Blake, 22 N. Y. 558;Low v. Harmony, 72 N. Y. 408;In re Moore's Estate, 152 N. Y. 602, 46 N. E. 960;Ramsay v. De Remer, 65 Hun, 212, 20 N. Y. Supp. 143;Robinson v. Greene, 14 R. I. 181, 190; Bentley v. Kaufman, 12 Phila. 435; Eldred v. Shaw, 112 Mich. 237, 70 N. W. 545;Trust Co. v. Pitkin (Mass.) 40 N. E. 1044;Baker v. McLeod's Estate, 79 Wis. 534, 543, 48 N. W. 657. Peat v. Powell: Gift was in trust for son till he attained 21, and then trust should cease. The words, “and then to my son and his heirs,” were interpolated by implication. Hale v. Beck: Gift in trust to pay interest to the plaintiff, an infant, until she came to the age of 21 years. Court implied a bequest to plaintiff absolutely after 21. Atkinson v. Paice: The bequest was “in trust to J. F. L. till he comes of age.” Held, that absolute bequest after majority would be implied. Goodright v. Hoskins: Bequest to son Richard until his son Thomas attained the age of 21 years, and no longer; but, in case said Thomas die in minority, then remainder to others. Held an implication of a bequest to Thomas upon his attaining majority. Gardiner v. Stevens: Property bequeathed in trust for A. and B. till B. is 25 years old. In case of death of A. and B. before that time, then over to others. Court held an implication raised that A. and B. should take the remainder when B. attained the age of 25 years. Ex parte Rogers: Bequest in trust for married niece A., to pay her interest, independently of her husband, during her life, and upon her decease without issue to pay over to others. Held that, having children, they took the principal of the legacy by necessary implication. Low v. Harmony: Bequest to A for life, and, in case she die without issue, then to testator's other heirs. A bequest to her children, if she have any, raised by implication. In re Moore's Estate: Estate for life to testator's two sons and the survivor. After the death of the two sons and their heirs, if they have any, bequest over to others. Court implied “heirs” to mean “heirs of the body,” and that, being such, they took the fee. Ramsay v. De Remer: Bequest to granddaughter Nellie, and, in case she shall die without issue, then over to others. Bequest to issue raised by implication, the court saying: “While it is not expressly so stated in the will, the plain implication is that the testator intended the property in question should be held and enjoyed by the plaintiff and her issue. Where the intent can be clearly collected from the writing it is the duty of the court to give effect to that intent, provided no rule of law is thereby violated; and devises by implication will be upheld where no gift of the property is made in formal language.” Baker v. McLeod's Estate: Bequest was of the whole estate in trust for an only daughter, an infant, to pay over rents and profits or principal as trustee should deem for the advantage of the daughter, and all the principal to be paid to her when she should attain the age of 21 years, and upon her death under the age of 21 years the estate was bequeathed to others. The court held that the plain intent of the testator justified the addition of the words “without issue” to the contingency of her death a minor, and that, she having died in her minority, but leaving issue, a bequest of the...