In re Scholl's Estate

• Decision Date: 11 October 1898
• Parties: IN RE SCHOLL'S ESTATE.
• Court: Wisconsin Supreme Court

100 Wis. 650

76 N.W. 616

IN RE SCHOLL'S ESTATE.

Supreme Court of Wisconsin.

Oct. 11, 1898.

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

Petition by Henry B. Dellicker, executor, for the construction of the last will and testament of Hannah Scholl, deceased. From a judgment reversing the decree of the probate court in part, the executor appeals. Reversed in part and affirmed in part.

Appeal from a judgment of the circuit court for Milwaukee county, construing the will of Hannah Scholl, who died testate, leaving surviving her, two brothers and three sisters, besides children and grandchildren of seven deceased brothers and sisters. The provisions of her will in regard to the distribution of the residue of her estate left after payment of her debts, expenses of her last sickness, and some specific bequests, constitute the portion called in question. They are in the following words:

“One full, equal twelfth part thereof, I give and bequeath to each of my brothers and sisters, namely: William Dellicker, Henry B. Dellicker, Lucy Fischer, Sophia Mock and Rebecca Weiant (formerly Schwartz), and one-twelfth to the children of each of my deceased brothers and sisters, namely: Fred. Dellicker, George Dellicker, Samuel Dellicker, Sarah Yerger, Catherine Wittman, Susan Shaner and Polly Romig, share and share alike; but in case of the decease of either of my said brothers or sisters, leaving lawful issue, then in such case, I give and bequeath his or her share to be equally divided among his or her children, share and share alike. And in the event of the decease of either of my said brothers or sisters, without leaving lawful issue, then, in such case I give and bequeath the said part of share that would otherwise go to that brother or sister, or to his or her children, to be equally divided among my surviving brothers and sisters. The surviving child or children of either of the brothers or sisters named to represent the share that party would receive had they survived me.”

“I will and direct that the money which, by the foregoing distribution would go to Theopolis Frick, grandson of Fred. Dellicker, deceased, shall be paid to his father, Jacob Frick, in trust for and to be applied for the support and maintenance of said Theopolis Frick.”

“Having paid to Sophia Mock, Rebecca Weiant (formerly Schwartz), William Dellicker and Henry B. Dellicker, each the sum of five hundred dollars, and to my sister Lucy Fischer, the sum of one thousand dollars (these being the specified legacies mentioned), I direct that in the final settlement of my estate the said sums so paid to each, be deducted from their respective shares and that in said distribution, Sallie Hoffman, daughter of Mrs. Sophia Mock, shall have one thousand dollars more than her sister Mary Leister, and in case said Sallie Hoffman does not survive her mother (Sophia Mock), then the amount to be paid to her, Sallie Hoffman, shall be paid to her son, Harry Hoffman.”

James Ward was an illegitimate son of a deceased grandchild of the Catherine Wittman mentioned in the will. The circuit court, reversing the probate court, decided that surviving descendants of deceased children of the testatrix in the direct line, however remote, were entitled to take distributive shares per stirpes under the will, and that James Ward was entitled to take notwithstanding his illegitimacy. Under that construction children of deceased parents down to the fifth degree were included in the distribution of property under the will. The executor appealed.

A. G. Weissert, for appellant.

Edward F. Byron and Haring & Frost, for respondents.

MARSHALL, J. (after stating the facts).

Did the testatrix intend to include children and grandchildren of deceased nephews and nieces in the distribution of her bounty by the use of the words, “I give and bequeath one-twelfth to the children of each of my deceased brothers and sisters;” and “in case of the death of either, I bequeath his or her share to be equally divided among his or her children”? That is the first question presented for consideration and it must be solved by applying to the language of the testatrix, in the light of all other provisions of the will and the general scheme manifestly in her mind when she executed it, some well-settled rules for judicial construction, the most important being, that the several parts of the instrument are to be taken together, having regard to their relation to each other; that each and every part must be given effect if possible, and in line with the general scheme of the testator; that words are to be taken in their ordinary rather than some peculiar sense, though the former will yield to the latter when it is clear from the instrument that the latter meaning was intended, or that it is necessary, rather than that any part of the will shall fail; that while the circumstances under which the will was made may be taken into consideration, they cannot be resorted to to vary the meaning which must necessarily be attributed to words, the purpose of construction being not to get meaning into the language of the testator, but to get the testator's meaning out of it; that such meaning when ascertained is to govern, if not contrary to law or good morals, however strange it may be, or however much the rules of punctuation and the literal meaning of words, or even their arrangement in the writing, may be violated to reach it.

It is obvious that the testatrix intended to bequeath one-twelfth of the residue of her property, after payment of her debts, expenses of last sickness, and the specific bequests preceding the general clause of her will, to each branch of her family in the collateral line. How remote she intended to go to reach a taker is the question. That the general scheme was as stated is quite manifest from her dividing the property into twelve equal parts, bequeathing one part to each of her living brothers and sisters, and one to the children of each of those dead, then providing that in case of the death of either of her living brothers and sisters during her lifetime, leaving lawful issue, the share of such brother or sister should be divided among his or her children; and in case of such death without issue, that the share should be equally divided among the surviving brothers and sisters, the surviving child or children of either of the brothers or sisters to represent the share that party would receive. There are many other indications in the will showing the scheme to have been as stated, but those particularly mentioned are sufficient. If we had only the words “to each of my brothers and sisters (naming those living), and to the children of each of my deceased brothers and sisters, share and share alike,” and the other instances already mentioned where the word “children” occurs in the will, no question could arise warranting a resort to rules for construction of the instrument to determine the meaning intended by the testatrix. The word “children,” when not rendered obscure by the manner of its use, has a plain and well-understood ordinary signification. It means the descendants of human parents in the first degree. That is its lexicographical as well as its ordinary legal meaning. Yet, issue in the direct line, however remote, may reasonably, in some circumstances, be included within the term, and it may be...