Liddell v. Edgar (In re Johnson's Estate)

• Decision Date: 04 June 1929
• Citation: 225 N.W. 818,199 Wis. 154
• Parties: IN RE JOHNSON'S ESTATE. LIDDELL ET AL. v. EDGAR ET AL.
• Court: Wisconsin Supreme Court

199 Wis. 154

225 N.W. 818

IN RE JOHNSON'S ESTATE.LIDDELL ET AL.

v.EDGAR ET AL.

Supreme Court of Wisconsin.

June 4, 1929.

Appeal from a judgment of the County Court of Grant County; W. J. Brennan, Judge. Reversed.

From a judgment of the county court of Grant county construing the will of Mary Johnson, deceased, several legatees appeal from various portions of the judgment.

The testatrix, Mary Johnson, was married to William Johnson in June, 1874. William Johnson died in March, 1900, at the age of 77 years, leaving his entire estate to the testatrix, Mary Johnson. The amount of the estate so left does not appear. There was no inventory filed in the proceedings probating his estate. While the petition for administration estimated the value of his personal property at $10,000, it is known that his estate greatly exceeded that amount. The testatrix, Mary Johnson, died February 27, 1926, at the age of 90 years. She left a will dated March 21, 1921. The inventory of her personal estate shows that it amounts, in round numbers, to $159,000, certain real estate inventoried at $750, and other real estate lying in the state of Minnesota not appraised. Her total estate was probably $170,000. This estate she disposed of by her will as follows: She first directed that her just debts and funeral expenses be paid; second, gave her clothes and wearing apparel to her two sisters, Mrs. E. A. Richardson and Ruth Liddell; third, “I give, devise and bequeath to my deceased husband's nephew, Thomas R. Edgar, and to his heirs and assigns forever, ten thousand dollars” (Thomas Edgar died January 5, 1919, leaving wife and five children); fourth, “I give, devise and bequeath to my deceased husband's nephew, John E. Johnson, five thousand dollars to have and to hold the same unto him, his heirs and assigns forever” (John E. Johnson died December 11, 1925, leaving three children); fifth, “To the three children of Jasper Johnson, deceased, nephew of my deceased husband, I give five thousand dollars to be divided equally among said three children;” sixth, “I give, devise and bequeath eleven thousand dollars to be divided equally among Anthony Short, Joseph J. Short and Mrs. Betsey Short, nephews and niece of my deceased husband” (Mrs. Betsey Short is dead); seventh, “I give, devise and bequeath eight thousand dollars to be divided equally among the two children of the deceased sister of the above mentioned John E. Johnson, whose maiden name was Betsey Johnson” (the names of these two legatees are Ernest C. Blanchard and Bessie Blanchard Manley; Bessie Blanchard Manley is dead); eighth, “I give, devise and bequeath to my brother, Joseph B. Liddell, the sum of three thousand dollars;” ninth, “I give, devise and bequeath to my sister, Ruth Liddell, the sum of two thousand dollars;” tenth, “I give, devise and bequeath to my sister, Mrs. Elizabeth Richardson, the sum of four hundred dollars;” eleventh, “I give, devise and bequeath to my nephew, Edgar T. Liddell, the sum of four hundred dollars;” twelfth, “I give, devise and bequeath to my niece, Mrs. Bella Yeaman, the sum of three hundred dollars;” thirteenth, “I give, devise and bequeath to my niece, Rilla Liddell Calvert, the sum of three hundred dollars;” four-teenth, “I leave the rest and residue of my estate to my executors to be divided equally among the heirs herein named in this will;” fifteenth, “I hereby constitute and appoint Joseph B. Liddell and W. H. Doyle as executors of this my last will and testament, without bonds except their own personal bonds.”

Eschweiler, J., dissenting.R. M. Orchard, of Lancaster, and J. W. Murphy, Jr., of Cuba City, and R. A. Goodell, of Platteville, for appellants and respondents Liddell and others.

Kopp & Brunckhorst, of Platteville, and Herman Pufahl, of Bolivar, Mo., for respondents and appellants Edgar and others.

OWEN, J.

[1] The most important controversy involves the construction of the four-teenth paragraph of the will, reading: “I leave the rest and residue of my estate to my executors to be divided equally among the heirs herein named in this will.” The county court construed the term “heirs” to mean “legatees,” and distributed the residue of the estate equally between the legatees named in the will who were living at the time of the death of the testatrix. This construction is challenged by the legal heirs of testatrix named in the will, who claim they are entitled to the residue of the estate.

The term “heirs” is a technical term, having a clear and undoubted meaning in the law. It means those to whom the law assigns intestate property. Will of Cowley, 120 Wis. 263, 97 N. W. 930, 98 N. W. 28. It is claimed that the testatrix could not have used the term in its legal sense because it is qualified by the indefinite article “the” rather than the possessive pronoun “my.” Perhaps the use of the word “my” would have made a more definite as well as a more grammatically correct expression than results from the use of the word “the.” However, the term “heirs” is the dominant word in the phrase and it should not be read out of the phrase or given a different meaning because the phrase on the whole is not the most graceful expression that can be thought of. While the use of the word “my” would perhaps be a more exact qualifying term and give rise to greater certainty, the use of the word “the” is not utterly ridiculous nor palpably incorrect.

By her will testatrix is disposing of her own estate. After making specific bequests to a number of persons, including strangers to her blood, she leaves the rest, residue, and remainder to “the heirs herein named in this will.” The heirs of the estate of which she is disposing are those who would take the estate in the event of her dying intestate. The use of the word “the” is not so strange or improper as to compel the conclusion that the testatrix employed the word “heirs” in an irregular sense. A consideration of the surrounding circumstances confirms rather than challenges this conclusion.

Testatrix married William Johnson in 1874. He was 51 years of age. She was his second wife. He died in 1900, leaving no children. By his will he left his entire estate to the testatrix. We do not know the amount of the estate he left. No inventory was filed during the course of the proceedings probating his will. We do know, however, that the estate left by the testatrix amounts to approximately $170,000. The foundation of this estate was the estate left her by her husband, and represents his estate, plus the accumulations and accretions thereto resulting from her management thereof. She managed this estate for 26 years, during which time she lived frugally. She managed the estate with ability and thrift. The inventory herein...