Mory's Estate, In re

• Decision Date: 01 February 1966
• Citation: 29 Wis.2d 557,139 N.W.2d 623
• Parties: In re ESTATE of Kittie Jessie MORY, Deceased. Gwendolyn Pettibone ROBINSON, Appellant, v. Martin V. WERNER, Admr. with Will annexed of the Estate of Kittie Jessie Mory, Decd., et al., Respondents,
• Court: Wisconsin Supreme Court

Page 623

139 N.W.2d 623

29 Wis.2d 557

In re ESTATE of Kittie Jessie MORY, Deceased.

Gwendolyn Pettibone ROBINSON, Appellant, v. Martin V. WERNER, Admr. with Will annexed of the Estate of

Kittie Jessie Mory, Decd., et al., Respondents,

Supreme Court of Wisconsin.

Feb. 1, 1966.

This case involves the construction of the will of Kittie Jessie Mory, deceased. Appellant Gwendolyn Pettibone Robinson is the niece of the testatrix, and the respondents Margaret Plankinton and Richard Pettibone are the great-niece and great-nephew of the testatrix--being the children of appellant's deceased brother. Testatrix was one of 11 children of Charles Mory. Seven of these children were born from his marriage to Helen Lipke. After her death he married Emilie Lorenz, and four children including the testatrix were born from that union. Thus, testatrix had three full brothers and sisters and seven half-brothers and sisters; she made no distinction between them.

The testatrix was born in 1874 and remained a single woman at the time of her death on October 26, 1962. She had previously made a handwritten will on January 8, 1920, which was admitted to probate. A later will, which was written on the back of a newsletter dated January 8, 1957, was not admitted to probate because not witnessed and not dated.

Testatrix's handwritten will of January 8, 1920, follows:

'Appleton, Wisconsin

'Jan. 08,-1920

'I--Kittie Jessie Mory of the city of Appleton, and state of Wisconsin, being of sound mind and memory, do make public and declare this to my my last will and testament, to wit:

'First:--I direct my executor, hereinafter named, to pay all my just debts and funeral expenses.

'Second:--I give to my niece, Gwendolyn Pettibone, my diamond ring, and large garnet broach, garnet earrings, .

'Third:--I give to my nephew, Frank Pettibone, the gold watch and chain which belonged to my beloved brother--George Mory--, whose name is engraved inside of same.

'Fourth:--I give to my three sisters--Mrs. Minnie Peck, Mrs. Rose Benoit, Mrs. Emma Pettibone, also to my brother William J. Mory, all the balance of my personal property, to be divided into equal shares.

'Lastly:--I appoint William J. Mory my executor.

'In witness where of, I have here unto set my hand and seal this 8th day of Jan., A. D. 1920.

/s/ 'Kittie Jessie Mory

'Witnesses,

/s/ Lulu Duwel

/s/ John Bottensek

/s/ H. A. Shannon

/s/ M. M. Verwey'

At the time the foregoing instrument was drafted, testatrix's three full brothers and sisters and half-brother, Frederick, had died. Two half-brothers, Charles, Jr., and Edward, were not provided for in the will. The remaining four, half-brothers and sisters, were named residuary beneficiaries.

Of the 11 children of Charles Mory, only two ever had issue. Charles Mory, Jr., had three children, and Emma Pettibone--mother of appellant and grandmother of respondents--had two children, Frank and appellant, both of whom were the subject of specific bequests in the will.

Testatrix was the last of the 11 children to die and, because all four residuary legatees predeceased her, the lapsed legacy questions of this case arose.

The trial court concluded that the testatrix 'did not intend to die intestate as to any of her property' and that 'construing the will as a whole, it is apparent that the testatrix intended that lapsed residuary shares should be distributed to the other residuary legatees and to their issue by right of representation.' Based upon these conclusions the judgment directed that the entire residue be distributed--one-half to Gwendolyn Pettibone Robinson, one-quarter to Margaret Pettibone Plankinton and one-quarter to Richard Pettibone.

The following chart is a reproduction of one of the exhibits in the record, and it illustrates the family relationships.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Gwendolyn Pettibone Robinson appeals from the judgment.

Thompson, Thompson & Grant, Oshkosh, for appellant.

McCarty, Burns, Swetz, Curry & Wydeven, Kaukauna, for Margaret Pettibone Plankinton and Richard Pettibone, respondents.

BEILFUSS, Justice.

The issue confronting the court in this case is the effect of the lapse of a residuary clause in a will.

Appellant argues that when each residuary beneficiary died, there occurred a lapse of his share of the residue, resulting in an intestacy. However, when Emma Pettibone died survived by two children, the anti-lapse statute ¹ prevented a lapse of her share. In effect, appellant argues that she is entitled to one-half of the one-fourth residuary share of Emma Pettibone, under the anti-lapse statute, plus the three other one-fourth shares of the other residuary beneficiaries who predeceased testatrix without issue, under the laws of intestacy.

Respondents, on the other hand, argue that the shares of the deceased residuary beneficiaries do not lapse and pass by intestacy, but remain in the residue and pass by right of representation through the deceased residuary beneficiaries who were survived by issue. In effect, they argue that the entire residue must pass through Emma Pettibone to her issue. Thus, appellant is entitled to one-half of the entire estate, and respondents are entitled to divide the other one-half.

The trial court agreed with respondents, finding that the testatrix contemplated no lapse and no intestacy, and that the will evinced no intent to prefer Gwendolyn over Frank and his heirs. Thus, the court concluded that testatrix's intent was that lapsed shares of the residuary remain in the residuary and pass to surviving residuary legatees.

We cannot read such an intent from the four corners of the will and hold that the lapsed shares of the residuary pass by the laws of intestacy.

Respondents cite Will of Schefe (1952), 261 Wis. 113, 52 N.W.2d 375; Will of Nielsen (1950), 256 Wis. 521, 41 N.W.2d 369; Will of Waterbury (1916), 163 Wis. 510, 158 N.W. 340; and Will of Reynolds (1912), 151 Wis. 375, 138 N.W. 1019, in support of their position.

Will of Reynolds, supra, at p. 379, 138 N.W. 1019 stated the general rule that '[a] residuary bequest which fails or lapses for any cause, and is not otherwise disposed of by the will, becomes intestate estate and descends to the heir.' However, the court looked at the language of the will and the facts and circumstances surrounding its execution to determine the testator's intent. In that case and the others cited above the court was able to find an intent and avoid invoking the intestacy rule.

Only in Will of Ziehlke (1939), 230 Wis. 574, 284 N.W. 497, did the court apply the general rule, but in that case no person existed who fit the description in the residuary clause, so the intestate distribution was compelled, and nieces and nephews who were specifically disinherited took by the laws of descent.

In Will of Nielsen, supra, the court invoked the presumption from Estate of Hoermann (1940), 234 Wis. 130, 290 N.W. 608, 128 A.L.R. 89, that a testator is presumed to intend a complete distribution of his estate, and courts should favor a construction which passes property through the will rather than by intestacy. This is especially true when the will contains a residuary clause. The court then proceeded to place great weight on extrinsic facts and circumstances in evidence to conclude that the death of a residuary legatee did not result in a lapse and intestacy as to that share.

Will of Rosnow (1956), 273 Wis. 438, 78 N.W.2d 750, laid to rest the confusion found in the early lapsed legacy cases in determining the intent of the testator. In that case the testator died survived by two sons, a daughter, and two grandchildren who were the children of a son who predeceased the testator. The testator's will specifically disinherited one...