In re Estate of Porath, No. 2005AP2975 (Wis. App. 7/18/2006)
Decision Date | 18 July 2006 |
Docket Number | No. 2005AP2975.,2005AP2975. |
Parties | In re the Estate of Marie A. Porath: Beverly Drews, Appellant, v. Carol Marwede, Respondent. |
Court | Wisconsin Court of Appeals |
APPEAL from an order of the circuit court for Outagamie County: JOHN A. DES JARDINS, Judge. Affirmed.
Before Cane, C.J., Hoover, P.J., and Peterson, J.
Beverly Drews appeals an order construing Marie Porath's will, which determined that a bequest of a sum of money to Beverly was a general bequest that abated because of insufficient assets. We affirm the order.
¶2 Marie's will was signed on August 22, 1997. At the time of her death on May 16, 2003, her assets included cash in the amount of $136.76, and an undivided one-half interest in her farm property. Marie's will provided, in article III, as follows:
If my husband, Carl A. Porath, predeceases me, I give all of my property as follows:
A. If I own an undivided one-half (1/2) interest in farm land located in the Northwest 1/4 of Section 17, Township 20 North, Range 17 East, in the Town of Menasha, Winnebago County, Wisconsin. I give my undivided one-half (1/2) interest in said farm to my daughter, CAROL MARWEDE, who already owns the other undivided one-half (1/2) interest.
B. I give to my daughter, BEVERLY DREWS, the sum of Fifty Thousand Dollars ($50,000.00) or a sum equal to fifty (50%) percent of the appraised value in my estate of the undivided one-half (1/2) interest which I own in the above-described farm, whichever is greater.
C. I give the sum of Ten Thousand dollars ($10,000.00) to TRINITY LUTHERAN CHURCH, NEENAH, WISCONSIN, or to its successor or successors.
D. I give the sum of Two Thousand Dollars ($2,000.00) to each of my grandchildren, living at the time of my death.
E. I give the sum of Ten Thousand Dollars ($10,000.00) to be divided equally between those of my great-grandchildren living at the time of my death.
F. I give the sum of Five Hundred Dollars ($500.00) to my niece, SHERYL O'ROURKE LOUGHRIN, presently of Greendale, Wisconsin, or to her issue by right of representation. If she leaves no issue then this bequest is to lapse and become part of the residue of my estate.
It is undisputed that Marie's husband, Carl, predeceased her. It is also undisputed that there were insufficient assets at the time of Marie's death to satisfy all the transfers set forth in the will. The circuit court distributed the specific devise of the farm property to Carol Marwede pursuant to paragraph A of the will. The court concluded that the bequests of sums of money that followed in paragraphs B through F were general bequests that abated because there was insufficient money in the estate to satisfy them. Beverly appeals.1
¶3 The construction of a will involves a question of law that we review without deference to the circuit court. Estate of Smith, 224 Wis. 2d 673, 676, 591 N.W.2d 898 (Ct. App. 1999). Despite our de novo review, we value the analysis of the circuit court. Furmanski v. Furmanski, 196 Wis. 2d 210, 214, 538 N.W.2d 566 (Ct. App. 1995). Our task in construing a will is to determine the testator's intent, and the best evidence of this is the language of the document itself. When the will is unambiguous, there is no need to look any further to ascertain the testator's intent. Smith, 224 Wis. 2d at 676-77.
¶4 Beverly argues that the order construing the will is contrary to Marie's intent. Beverly asserts that when read in its entirety, the will evidences Marie's clear intent to treat her daughters equally. Beverly does not dispute that Marie intended to leave her one-half interest in the farm to Carol, as Carol already owned the other half of the farm. However, Beverly contends that abatement "would completely defeat Marie's estate plan" because Carol would receive the farm and Beverly would receive nothing. We disagree.
¶5 The plain language of Marie's will leaves the farm property to Carol and sums of money to Beverly and certain others. As the circuit court correctly noted, the bequest to Beverly does not provide that Carol takes the farm property subject to a lien in favor of Beverly, or that Beverly is to be paid upon sale of the farm. Marie's will gives no indication of the source of the sum of money for the bequest to Beverly. Paragraph B simply indicates that Beverly was to receive "the sum of" or "a sum equal to" certain amounts. Paragraphs A and B are not contingent upon each other. The only condition placed on the bequest of the farm property to Carol was that Marie own it at the time of her death. There was no condition that the estate be sufficiently funded to satisfy the cash bequests that followed.
¶6 As such, the language of the will, if given its ordinary meaning, is consistent with the circuit court's determination that the bequest of the farm property to Carol was a specific bequest. A specific bequest 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." Estate of Haberli, 41 Wis. 2d 64, 69, 163 N.W.2d 168 (1968) (citation omitted). The farm property was identified in the will by legal description and available to be distributed to Carol. It is a specific bequest of Marie's one-half interest in the farm property.
¶7 The issue thus becomes whether the circuit court correctly determined that the bequests of sums of money in paragraphs B through F were general bequests. A general bequest is one that confers a general benefit but not a specific asset. It is characterized by the fact that it does not attempt to dispose of any specific article or be made a charge on such item, but it is payable generally from the estate. Will of Weed, 213 Wis. 2d 574, 578, 252 N.W.2d 294 (1934). As Professor Howard Erlanger discusses in his handbook for practitioners:
A "general" transfer is one that confers a general benefit but not a specific asset; for example, the transfer of $10,000.
Howard S. Erlanger, Wisconsin's New Probate Code, a Handbook for Practitioners, 120 n.167, University of Wisconsin Law School (1998).
¶8 Marie's will does not specify an asset that would confer the sum of money bequested to Beverly, nor is the sum of money "charged" to a specific asset. Rather, it is simply the transfer of a sum not less than $50,000. In Korn v. Friz, 128 Wis. 428, 429, 107 N.W. 659 (1906), the court was presented with the following will provision: "I will, devise, and bequeath to my son William Korn my farm [description omitted] upon the express condition, however, that he shall pay to my daughter, Phillipina Steele, the sum of five thousand ($5,000.00) dollars within one year after the death of my said wife ...." The Korn court concluded the testator intended that out of his farm should be paid $5,000 to his daughter. Since the son was to take possession immediately upon the death of his mother and was not required to make payment to his sister until afterwards, the court concluded this was a condition subsequent that conferred upon the sister the right to a lien or "charge" for the sum of...
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