Jankewicz' Estate, In re

Decision Date01 February 1966
Citation139 N.W.2d 662,29 Wis.2d 713
PartiesIn re ESTATE of Walter JANKEWICZ, Deceased. Anna JANKEWICZ, Appellant, v. Andrew DMITROVSKY et al., Exrs. of the Will and Estate of Walter Jankewicz, Decd., et al., Respondents,
CourtWisconsin Supreme Court

This is an appeal by Anna Jankewicz, wife of the decedent Walter Jankewicz, from orders denying her petitions for assignment of the entire estate of the decedent and for family and widow's allowances.

Walter Jankewicz died testate, without ever having issue, on March 16, 1963. At the time of his death he had not been living with his wife for at least seven years; the parties stipulated that during this period he had contributed nothing toward her maintenance and support, and that she was employed and self-supporting.

The couple was divorced in 1941, but the judgment of divorce was later vacated. The judgment of divorce divided the estate of the parties--appellant receiving described real estate of unknown value, personal property valued at over $8,000, and household furniture and utensils. There is no evidence that this property was ever returned to the decedent. This judgment also restored to appellant the use of her maiden name, Vojtka.

Appellant commenced a subsequent divorce action against the decedent in 1952, but that action was later dismissed.

For approximately ten years prior to his death decedent was a member of the respondent Orthodox Church of the Holy Virgin Protection. He attended services regularly and was president of the church committee at the time of his death.

The county court determined that the will, dated February 10, 1955, is not ambiguous biguous and provides for election against the will, not intestate distribution as contended by appellant, and denied appellant's petition for the entire estate.

The court further denied appellant's petition for family and widow's allowances under secs. 313.15(2), (4), Stats., infra, because appellant failed to meet the statutory requirements of those subsections.

Appellant appeals from these orders.

Bernard F. Mathiowetz, Milwaukee, for appellant.

Ebert, Kuswa & Ebert, Milwaukee, for executors.

Thomas P. Maroney, Milwaukee, for Orthodox Church.

BEILFUSS, Justice.

The issues involved on this appeal are the construction of the will and the widow's right to allowances.

The portion of the testator's will in dispute here is:

'SECOND: It is my express wish and will that my wife, ANNA JANKEWICZ, also known as ANNA VOJTKA, shall receive no share or portion of my estate. If she is still my wife at the time of my death, and as such makes any claim to my estate, she shall receive only the minimum amount to which she may by law be entitled.'

The residue was given to the respondent church.

Appellant petitioned the court for assignment of the entire estate, arguing that the will provides for her to take as if testator had died intestate. Then, under secs. 237.01(2), 237.02(1), and 318.01(1), Stats., she would be entitled to the entire estate, testator having never had children.

The county court concluded that the will is not ambiguous and provides for appellant to receive only such share of the estate as provided by the statutes concerning election against the will--secs. 233.13, 233.14, Stats.

While the position taken by the court has considerable merit--especially in view of the facts that testator specifically disinherited appellant, that he provided for her to make a 'claim' against his estate to receive anything, and that even then she would receive only the 'minimum amount' allowed by law--we prefer to hold that the will is ambiguous.

In Estate of Gibbs (1961), 14 Wis.2d 490, 496, 111 N.W.2d 413, we considered several instances of ambiguity in which extrinsic evidence may be resorted to. One example of a latent ambiguity discussed there is a situation where no single person or thing answers perfectly the description in the will, but who or more persons or things answer that description imperfectly. In the case at bar no set of laws exactly fits the description 'law' used by the testator, but either the laws of intestacy or the laws of election against the will fit that description imperfectly. There is also a patent ambiguity existing on the face of testator's will. He expressed a wish that appellant receive nothing from his estate; he then expressed a means by which she could obtain some portion of his estate. This inconsistency on the face of the will raises a patent ambiguity. Thus, it was proper for the county court to consider extrinsic evidence, as it did, to construe the ambiguities in the will.

Appellant cites Estate of Gray (1953), 265 Wis. 217, 61 N.W.2d 467, and Estate of Hipsch (1953), 265 Wis. 446, 62 N.W.2d 18, in support of her argument that the laws of intestacy apply.

In Estate of Gray, supra, the will provided, 265 Wis. p. 218, 61 N.W. p. 468:

"3. I herewith give, devise and bequeath unto my wife, Mildred Gray, the share of my estate which she would receive under the law if I died intestate."

The residue was given to three sisters.

We construed the will as unambiguous and ordered distribution under the laws of intestacy.

In Estate of Hipsch, supra, the will provided, 265 Wis. p. 447, 62 N.W.2d 18:

"Second: I give, devise and bequeath to my wife, Marie Hipsch, such homestead and dower rights in all of the real estate of which I may die seized as she would have if I had died intestate."

The residue was placed in trust.

Again, we found the will unambiguous, and relied on Gray to require distribution as in an intestacy.

In both of those cases the will was clear and unambiguous, and referred specifically to the intestate statutes. A different situation arose in Will of Pfeiffer (1939), 231 Wis. 117, 285 N.W. 432, and Will of Klinkert (1955), 270 Wis. 362, 71 N.W.2d 279.

In Will of Pfeiffer, supra, the will provided, 231 Wis. p. 118, 285 N.W. 432:

"Second. I give, devise and bequeath unto my wife, Johanna Pfeiffer, all that part of my estate which would legally go to her according to the statutes provided therefor."

We found that will ambiguous and looked at the facts and circumstances surrounding the execution of the will and determined that the testator could not have contemplated the statutes operative only if there is no will, because the testator made a will purporting to dispose of all of his property. Thus, we held that the testator must have contemplated the election statutes.

In Will of Klinkert, supra, testator mentioned 'statutory share' several times. We found an ambiguity in the language, and after looking to extrinsic evidence admitted, determined that testator was referring to the election statutes.

The present will contains language nearly identical to that in Pfeiffer, except that here we have even a stronger case for holding that decedent contemplated the election statutes. Decedent specifically disinherited his wife. The extrinsic evidence, mostly in form of facts stipulated, indicates that decedent must have intended that if appellant were to receive anything, she should take by election. The parties had been divorced once, and a second suit had been commenced. They had lived separated from one another for over seven years. Decedent had contributed mothing to appellant's maintenance and support during those years. Appellant was self-supporting. She has not shown that she returned any of the property she received by the divorce judgment, even though that judgment was vacated. She used her maiden name, Vojtka, instead of her married name, Jankewicz, at least on some occasions. Decedent had a very close relationship with respondent church which he named as residuary beneficiary, being a long-time member and officer.

Thus, in construing the ambiguity in the will, we hold that the decedent intended appellant to receive no portion of his estate, except the share provided indestructibly by the election statutes.

Appellant petitioned the court for allowances under sec. 313.15(2), (4), Stats., Sec. 313.15(2), provides:

'Allowance to family. The widow and minor children, or either, constituting the family of the deceased testator or intestate, shall have such reasonable allowance out of the personal estate or the real estate, or both, of the deceased as the county court shall judge necessary for their maintenance until an award shall be made or refused as provided in subsection (4)(a) of this section, or their shares assigned to...

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5 cases
  • Tollefsrud's Estate, Matter of
    • United States
    • Iowa Supreme Court
    • February 21, 1979
    ...a number of years during which the parties were economically self sufficient, in denying the statutory allowance. In Re Estate of Jankewicz, 29 Wis.2d 713, 139 N.W.2d 662, 667; In Re Fallon's Estate, 49 Cal.2d 402, 317 P.2d 963, 964. In Fallon, at pages 964-965, the California Supreme Court......
  • Boerner's Estate, In re
    • United States
    • Wisconsin Supreme Court
    • March 3, 1970
    ...20 Wis.2d 63, 66, 121 N.W.2d 245, 96 A.L.R.2d 634; In re Estate of Bletsch (1964), 25 Wis.2d 40, 130 N.W.2d 275; In re Estate of Jankewicz (1966), 29 Wis.2d 713, 139 N.W.2d 662.9 In re Estate of Breese, supra, 7 Wis.2d at p. 426, 96 N.W.2d at p. 716.10 Sec. 885.22, Stats., provides: 'An att......
  • Hein v. State Farm Mut. Auto. Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • February 1, 1966
  • O'Connor Oil Corp. v. Warber
    • United States
    • Wisconsin Supreme Court
    • May 10, 1966
    ...remanded with directions to enter judgment for the plaintiff pursuant to the demand of the complaint. 1 Also see Estate of Jankewicz (1966), 29 Wis.2d 713, 139 N.W.2d 662; and Estate of Gibbs (1961), 14 Wis.2d 490, 111 N.W.2d 413.2 See Martell v. National Guardian Life Ins. Co. (1965), 27 W......
  • Request a trial to view additional results

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