Mangel's Estate, In re
| Decision Date | 04 May 1971 |
| Docket Number | No. 86,86 |
| Citation | 186 N.W.2d 276,51 Wis.2d 55 |
| Parties | In re ESTATE of Otto A. MANGEL, Decd. Raymond MANGEL et al., Appellants, v. Bert F. STRONG, Admr. with Will Annexed et al., Respondents. |
| Court | Wisconsin Supreme Court |
This is an appeal from a judgment construing the last will and testament of Otto Mangel, deceased. The appellants are seven heirs at law of the decedent. The respondent, for the purposes of this appeal, is Daniel Torsrud, stepson of decedent and heir of testator's deceased wife, Irene Mangel.
The judgment construing the will was adverse to the appellant-heirs of Otto Mangel, the deceased testator.
Runkel & Runkel, Port Washington, for appellants.
Schmitt, Nienow, Nickel & Nolan, Merrill, for respondents.
The testator died on March 6, 1967, leaving a will executed on June 1, 1951, in which he bequeathed his estate as follows:
The testator married Irene E. Mangel in 1931. Mrs. Mangel had been previously married and had one son by that marriage, Daniel Torsrud, born July 18, 1915. Irene Mangel predeceased testator, having died four days earlier on March 2, 1967.
The trial court held that by paragraph two of his will, the testator intended to dispose of his estate by leaving his property to his wife's son, Daniel, in the event his wife predeceased him.
It is well settled that where a bequest is made to a named beneficiary who dies before the testator, the bequest lapses, unless the anti-lapse statute, sec. 238.13, is applicable. Sec. 238.13 provides:
It is also well settled that when a bequest is made to the testator's wife, and the wife predeceases the testator, sec. 238.13 does not prevent a lapse of the bequest, a wife not being a relative within the meaning of sec. 283.13. Cleaver et al. v. Cleaver et al. (1875), 39 Wis. 96; Estate of Dodge (1957) 1 Wis.2d 399, 84 N.W.2d 66.
The question raised on this appeal is whether the testator intended the words 'and to her heirs and assigns forever' to be words of limitation or words of substitution. Appellants contend that these are words of limitation rather than substitution, and that the legacy lapsed when Irene Mangel predeceased the testator.
At common law, a devise to a person and his heirs and assigns created an estate in fee simple. The words 'and to his heirs and assigns' were held to be words of limitation rather than substitution. Without the use of these words, a general devise passed only a life estate, unless an intention to pass a fee simple estate appeared in the will. In this state the necessity of using words of inheritance to devise an estate in fee simple has been abandoned. By sec. 238.02, Stats., a geneal devise creates an estate in fee simple unless a contrary intention appears in the will.
However, the meaning of the words of inheritance has not been changed by statute even though the necessity for the use of such words has been removed. The general rule is that the words 'and to his heirs' or 'and to his heirs and assigns forever,' when used in a will are merely words of limitation and not of substitution, and hence do not prevent a lapse of a gift upon the death of the donee in the testator's lifetime, unless an intention to make a substitution can be gathered from other language in the will. See 96 C.J.S. Wills § 809, p. 234; Annot., Devise or bequest to one 'or his heirs' or to one 'and his heirs' as affected by death of person named before death of testator. 78 A.L.R. 992, supplemented at 128 A.L.R. 94.
Under certain circumstances this court has held that the use of the words 'and to his heirs and assigns' were not subject to construction for the purpose of showing a contrary intent of the testator.
In Estate of Judson (1919), 168 Wis. 361, 170 N.W. 254, the testator bequeathed his estate to two named beneficiaries and to their heirs and assigns. The two named beneficiaries predeceased the testator. This court held that the legacies lapsed and that the heirs of the named beneficiaries did not take under the words 'heirs and assigns.' The court stated that the words had a clear meaning and that no testimony to show a contrary intent of the testator was admissible:
'It is clear under the authorities that the words 'heirs and assigns' are merely words of limitation, descriptive of the nature of the estate given to the legatees. Cleaver v. Cleaver, 39 Wis. 96, 20 Am.Rep. 30; Van Beuren v. Dash et al., 30 N.Y. 393, at pages 414 and 415; 2 Alexander on Wills, § 774. * * *
'It is insisted by appellants that the testator intended that his property should go to the named legatees and in case of their death to their heirs. The language of the will is very plain; there is no uncertainty in the meaning of the language used, and, under the established principles of law, the heirs of the legatees named took no interest in the testator's property. Testimony to show a contrary intention was not admissible.
"It is only where uncertainty of sense is clearly apparent, in testamentary as in other instruments, that judicial construction is required or permissible.' Holmes v. Walter et al., 118 Wis. 409, 95 N.W. 380; Mitchell v. Mitchell, 126 Wis. 47, 105 N.W. 216; Flint v. Wisconsin T. Co., 151 Wis. 231, 138 N.W. 629, Ann.Cas.1914B, 67; In re Will of Owens, 164 Wis. 260, 159 N.W. 906.
'In re Will of Ehlers, 155 Wis. 46, 143 N.W. 1050, relied upon by appellants, after discussing the rule the court said:
"* * * All in harmony with the rule that the legal intention of the testator is the one expressed by his language, though it may not be exactly the real intention he had in mind,--that his purpose can be given vitality only so far as it can be read reasonably out of the will. * * *" Estate of Judson, supra, pp, 364, 365, 170 N.W. p. 255.
Again, in Will of Johnson (1929), 199 Wis. 154, 225 N.W. 818, where the testatrix made specific bequests to named legatees 'and to his heirs and assigns forever,' and the named legatees predeceased the testatrix, the court held that the words 'and to his heirs and assigns forever' could not be construed as words of substitution.
In Will of Peters (1937), 223 Wis. 411, 270 N.W. 921, the testator bequeathed a part of his estate to his wife and to her heirs and assigns forever. The testator's wife died during his lifetime and left as her heirs several children by a previous marriage. This court held that the legacy to the testator's wife lapsed and that her children did not take under the will. The court stated:
Will of Peters, supra, p. 413, 270 N.W. p. 922.
In two more recent cases this court held that, under the particular facts presented, the words 'and to his heirs and assigns' were used as words of substitution. In arriving at this result the court construed the foregoing words in the context of the entire will and found an intent on the party of the testator to make a substitutionary devise.
In Estate of Hoermann (1940), 234 Wis. 130, 290 N.W. 608, the testatrix died leaving certain property to a son, Ernst, who predeceased her. In paragraphs 20 and 21 of her will, testatrix left specific legacies to her son 'and his heirs and assigns forever.' In paragraph 24, she left the residue of her estate in equal shares to her 10 children, including her son Ernst, 'unto them, share and share alike, and to their respective heirs and assigns forever.' This court held that the legacy in paragraph 20 lapsed and that the words 'unto him and his heirs and assigns forever' did not create a substitutionary devise. As to this paragraph of the will, the court stated:
'* * * Presumptively, the words 'unto him and his heirs and assigns forever' are words of limitaion. * * * (E)ven in the case of gifts of personal property, the phrase is presumed to have been used to limit the estate rather than to provide a substitutionary gift. Will of Johnson, 199 Wis. 154 (160), 225 N.W. 818, 70 A.L.R. 575; Will of Peters, 223 Wis. 411, 270 N.W. 921. * * *
* * *' Estate of Hoermann, supra, pp. 134, 135, 290 N.W. pp. 609--610.
However, the court held that the testatrix intended a substitutionary devise in paragraph 24 by the words, 'unto them, share and share alike, and to their respective heirs and assigns forever.' In so holding, the court relied...
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