Kugler's Estate, In re

• Decision Date: 02 November 1971
• Docket Number: No. 156,156
• Parties: In re ESTATE of Frances Koehn KUGLER, Decd. William F. HEGNER, Admr. with Will Annexed, Appellant, v. Wilbert STAUDENMAIER, Respondent.
• Court: Wisconsin Supreme Court

Page 883

190 N.W.2d 883

52 Wis.2d 532

In re ESTATE of Frances Koehn KUGLER, Decd William F. HEGNER, Admr. with Will Annexed, Appellant, v. Wilbert STAUDENMAIER, Respondent.

No. 156.

Supreme Court of Wisconsin.

Nov. 2, 1971.

Rehearing Denied Jan. 4, 1972

This is an appeal from an order construing the residuary clause of the will of Frances Koehn Kugler. The will read, in part, as follows:

'* * *

'SECOND: I give, devise and bequeath the realty and house thereon, excluding all its contents and all furnishings, in use therewith, both useful and ornamental, located at 1725 East Newberry, Appleton, Wisconsin, to my brother, Edward W. Koehn of Route 1, Menasha, Wisconsin.

'THIRD: Subject to the above provision I give, devise and bequeath all the rest, residue and remainder of my estate, including any lapsed legacies, and whether by me now owned or hereafter acquired, and wherever the same may be located, as follows: One Fourth (1/4) of the entire residue to Mrs. Lawrence (Mary) Schmidt, my sister-in-law, of Appleton, Wisconsin; One Fourth (1/4) of the entire residue to Mrs. Frank (Ann) Van Rossum, my sister-in-law, of Appleton, Wisconsin; One Fourth (1/4) of the entire residue to Mrs. Eugene (Rose Mary) Koehn, my nephew's wife, of Appleton, Wisconsin; and the balance of my estate to: (1) St. Joseph's Indian School, Chamberlain, South Dakota; (2) St. Labre Mission, Ashland, Montana; (3) The Sacred Heart Church, in the City of Appleton, Wisconsin, for Masses to be read for the repose of my soul and the soul of my deceased husband, Ted; * * *'

The will was properly executed on May 2, 1960. The house on Newberry street, which was devised to deceased's brother, was sold by the testatrix on June 1, 1961. On March 23, 1963, one of the residuary legatees, Mrs. Lawrence (Mary) Schmidt, died. The testatrix died, widowed and childless, on the 18th of October, 1967, without having changed any of the provisions of her will. The will was admitted to probate on November 28, 1967; and the estate was appraised at $74,842.81.

After the death of her husband, the testatrix's only heir at law was her brother Edward W. Koehn. A close family relationship existed between the testatrix and her brother, as is evidenced by her desire to give him the Newberry street property, which had been in the family for approximately 100 years. The sale of this property before the death of the testatrix, however, was held by the trial court to result in an ademption. This ruling is not questioned on appeal. As a result of the ademption, the brother could take nothing under the terms of the will.

The trial court was called upon to construe the residuary clause of the will. The administrator of the estate argued that since the residuary clause gave one-fourth of the residuary estate to each of three named legatees and the 'balance' to a group of three charities, the word 'balance' should be interpreted as meaning 'one-fourth.' It was further contended that if the charities could take no more than one-fourth of the residuary estate, the legacy which lapsed by virtue of the death of Mrs. Mary Schmidt would then pass as intestate property to the brother of the testatrix. To support the proposition that the testatrix had intended the residuary to be divided equally between the named residuary legatees and the charities, the administrator attempted to introduce the notes made by the attorney who drafted the will. The trial court refused to admit this evidence on the grounds that the will was clear on its face. An offer of proof was made, showing that the attorney had written the numerals '1/4' before the names of each of the three named beneficiaries and before the phrase 'divided 3 ways' followed by the names of the three charities.

The trial judge determined that the will was not ambiguous and that the word 'balance' meant that the three charities should receive whatever was left over after the surviving residuary legatees received one-fourth of the residuary estate. Since only two other residuary legatees survived the testatrix, the charities were deemed entitled to one-half of the residuary estate.

William A. Ketterer, Milwaukee, for appellant.

McKenzie, Hebbe, Downey & Kellegg, Appleton, for respondent.

HANLEY, Justice.

Three issues are presented on this appeal:

(1) Does the one-fourth share of the residuary estate which has lapsed due to the death of the legatee before the death of the testatrix pass an intestate property;

(2) Does the will contain a latent ambiguity which would allow the admission of extrinsic evidence to explain the intention of the testatrix; and

(3) Where 'one-fourth' of the residuary estate is bequeathed to each of three specifically named legatees, does the lapsed share of a deceased legatee pass to the beneficiary whose share is described as 'the balance?'

Lapsed Estate As Intestate Property.

It is obvious that the lapsed share of the residuary estate cannot pass as intestate property, since the will specifically provides for the return of any lapsed legacies to the residuary of the estate--'* * * I give, devise and bequeath all the rest, residue and remainder of my estate, including any lapsed legacies, * * * as follows: * * *' (Emphasis supplied.) It has been held that a lapsed share of the residue will pass as intestate property only if no contrary intent is expressed. Estate of Mory (1966), 29 Wis.2d 557, 565, 139 N.W.2d 623. This result is supported by the presumption that the testatrix intended to devise her property rather than create an intestacy. Estate of Zink (1962), 15 Wis.2d 527, 533, 113 N.W.2d 420.

Admissibility of Extrinsic Evidence.

The second question raised is whether extrinsic evidence is admissible to clarify the meaning of the word 'balance' as used in the residuary clause. The...