McWilliams' Estate, Matter of, 75-513

• Decision Date: 01 June 1977
• Docket Number: No. 75-513,75-513
• Citation: 254 N.W.2d 277,78 Wis.2d 328
• Parties: In the Matter of ESTATE of J. G. McWILLIAMS, a/k/a John Glenn McWilliams, Deceased. William R. McCARVILLE, Personal Representative, Respondent, v. Evelyn L. McWILLIAMS, Appellant.
• Court: Wisconsin Supreme Court

Page 277

254 N.W.2d 277

78 Wis.2d 328

In the Matter of ESTATE of J. G. McWILLIAMS, a/k/a John

Glenn McWilliams, Deceased.

William R. McCARVILLE, Personal Representative, Respondent, v. Evelyn L. McWILLIAMS, Appellant.

No. 75-513.

Supreme Court of Wisconsin.

Argued May 4, 1977.

Decided June 1, 1977.

George K. Steil, Mark L. Korb and Campbell, Brennan, Steil & Ryan, S. C., Janesville, on brief; and George K. Steil, Janesville, argued, for appellant.

John J. McWilliams, Janesville, argued and on brief, for respondent.

Arthur W. Greenhalgh, Guardian ad litem, Janesville, argued and on brief, for respondents.

DAY, Justice.

This is an appeal from a judgment and amended judgment construing the will of the late J. G. McWilliams, a practicing attorney for more than fifty years and at one time a judge of county court, probate branch, in Rock County. The will is dated November 20, 1974. Clause three bequeathed one-third of the personal property in his estate to his wife, appellant Evelyn L. McWilliams. Clause five left "the remaining two-thirds (2/3)" of the personal property in his estate to certain named beneficiaries each of whom was bequeathed specific amounts of money and other personalty in the same clause, for a total in that clause of $121,000 in bequests. The problem is that this sum, $121,000, plus the one-third portion bequeathed to decedent's wife, is less than the total sum to be distributed. The net value of the estate subject to administration is inventoried at $410,726.44.

The issue is whether the trial court erred in construing clause five to be a residuary clause with the unbequeathed amount going to each of the named beneficiaries in that clause on a pro rata basis. Appellant widow argues clause five is not a residuary clause and therefore she takes the residue as the only heir at law. Respondents are ten named minor heirs taking under clause five, represented by a guardian ad litem, and the personal representative, William R. McCarville, who is also a beneficiary under clause five.

The defendant died January 1, 1975. On January 7, 1975 the personal representative petitioned the court for appointment of himself as Special Administrator so as "to conserve and administer decedent's estate." On April 28, 1975 the inventory was filed showing a gross estate valued at $410,726.44. The net value of property subject to administration is the same amount. All of this property was personal property with the exception of real estate valued at $32,500.00.

A petition for construction of the will was filed June 16, 1975 by the attorney for the personal representative. The petition alleged the will is ambiguous and fails clearly to express the intention of the testator and prayed for a determination of the testator's intent with regard to the residuary of his estate.

A hearing on the petition was held July 7, 1975 and a memorandum decision was filed October 2, 1975. Judgment construing the will was entered on October 29, 1975. An amended judgment was entered November 17, 1975. The trial court determined clause five is a residuary clause with each of the beneficiaries named therein to share on a pro rata basis. In arriving at this decision the trial court relied on the will itself and six exhibits consisting of previous wills and a codicil.

The will admitted to probate was executed November 24, 1974 and reads in part as follows:

"SECOND: The legacies and devise to my wife, and all expenses of administration and monument and burial expenses, medical bills, if any, are to be paid one hundred cents on the dollar and not prorated. It there is not enough property and money in my estate to pay all the legacies in full, then I direct that after the payment of the legacy to my wife and the expenses of last sickness, burial, administration, and the bequest of Thirty Thousand Dollars ($30,000.00) to my beloved cousin, John J. McWilliams, there shall be paid to all other legatees subsequently mentioned in this my last will, on a pro-rata basis.

"THIRD: As to the personal property in my estate, with the exception of my books, paintings and piano in my home, I give and bequeath one-third (1/3 thereof to my wife, Evelyn L. McWilliams. The piano above referred to really belongs to my wife, I having bought the same for her as a wedding present. This request refers only to the personal property in my estate.

"FIFTH: The remaining two-thirds (2/3) of the personal property in my estate, with the exception of the paintings, books and piano above referred to, together with the remainder of my real estate, I give, devise and bequeath as follows; to-wit:"

There followed eighteen numbered subparagraphs bequeathing designated sums, directing that certain persons (half-sisters) take nothing and also specifying that a $30,000 bequest to John J. McWilliams, decedent's cousin (and attorney for the personal representative) be paid in full without pro rating in the event the estate was insufficient to cover all bequests. One numbered subparagraph bequeathed household paintings to a named beneficiary. Several bequests provided for lapse in case the beneficiary pre-deceased the testator. No specific provision was made for the disposition of lapsed gifts.

The personal representative and the guardian ad litem for the beneficiaries argue that clause FIFTH is a residuary clause and that the beneficiaries named therein should share in the excess over the specified amounts bequeathed to them on a pro rata basis.

The argument that this is a residuary clause is further strengthened by the last sentence in clause FOURTH which says with respect to his wife's life use of the real estate:

"If she desires that the said home shall be sold, the value of her life use is to be determined by and under the American Experience of Mortality tables and the balance thereof of said sale price shall go into the residue of my estate."

No particular words such as "residue" are necessary to create a residuary clause. Gallagher v. McKeague, 125 Wis. 116, 103 N.W. 233 (1905). However, even if we were to assume that the opening paragraph of clause FIFTH was intended to make it a residuary clause, the question is, did it accomplish its intended purpose?

Subparagraph four of clause FIFTH provides:

". . . 4. I give and bequeath to my beloved cousin, Joseph McWilliams, the sum of Ten Thousand Dollars ($10,000.00) together with the paintings in my home and books therein. I request that two or three of the paintings go to the Court House or Art Gallery in Darlington, Wisconsin, with the names of my two dead sisters, Mary and Bonnie McWilliams, printed thereon. These pictures are not originals."

The gifts of the pictures and books are specific bequests, whereas the gift of the money is a general bequest. ¹ ". . . Testator may incorporate a general or specific legacy in a residuary clause. If he does this, such legacy will be treated, for the purpose or abatement, as a legacy of such type, and not as a residuary legacy." ² (Emphasis supplied).

If clause FIFTH were to be regarded as a residuary clause it is clear that both specific and general bequest were included in it and that these bequests, found in the subparagraphs, are not part of the residuum.

"The residuum of an estate is that part of it left after paying the debts of testator, the expenses of administration, and the specific, demonstrative and general bequests and devises given in a will." ³

Clause FIFTH, though it makes specific and general bequests lacks a provision for the residuum. It is as incomplete as a clause that would say, "I give, devise and bequeath all the rest, residue and remainder of my estate" followed by no further words of disposition. Once the specific and general bequests are taken from clause FIFTH, nothing remains. We conclude it fails as a residuary clause.

It is inferable the testator expected there would not be enough in the estate to cover the amounts provided for the various beneficiaries and he accordingly provided that the $30,000 to his cousin John J. McWilliams not be pro rated. But no provision was made for disposition in case of excess over those amounts, and this court could only guess as to how such excess should be distributed. This court cannot supply such deficiency. ⁴

Respondents alternatively argue this court should find they are the recipients of a gift by implication, citing In re Trust of Pauly, 71 Wis.2d 306, 237 N.W.2d 719 (1975). It is our opinion the doctrine is inapplicable to the case at bar.

In Pauly, the testator created a trust out of the residuary of her estate with part of the trust income going to a brother during his life and the balance of the income going to testator's daughter, Elsa Pauly Wilson, during Elsa's life. The will then provided,

"B. If my daughter aforenamed should die before my grandson, Francis Wilson, has attained the age of thirty, the income of said trust estate is to be paid in equal shares to my grandchildren, Francis Wilson and Annette Wilson, until my grandson, Francis Wilson shall have attained the age of thirty years, when it is my will that the trust shall cease and the principal shall be paid in equal shares to my grandchildren, Francis...