Parker's Will, In re

• Citation: 76 N.W.2d 712,273 Wis. 29
• Parties: , 60 A.L.R.2d 730 In re Construction of the WILL of Elmer H. PARKER, Deceased. Charles O. WHITE et al., Appellants, v. Carl W. JENSON et al., Respondents.
• Decision Date: 01 May 1956
• Court: United States State Supreme Court of Wisconsin

Page 712

76 N.W.2d 712

273 Wis. 29, 60 A.L.R.2d 730

In re Construction of the WILL of Elmer H. PARKER, Deceased.

Charles O. WHITE et al., Appellants, v. Carl W. JENSON et al., Respondents.

Supreme Court of Wisconsin.

May 1, 1956.

Graves & Chambers, Wisconsin Rapids, for appellants.

Davison & White, River Falls, for respondents.

FAIRCHILD, Chief Justice.

Appellants contend that the testator, 'by defining his estate as including one-half of the joint property' (bank account) intended that the value of such property be taken into consideration in determining the one-third interest in his estate bequeathed to his wife. They concede that 'the will was ineffectual to pass the title to the cash in the bank account'; but suggest that the court, under its equity jurisdiction, has the power to decree distribution according to their contention. They seek construction of the will according to that concept. In determining the intention of the testator in that respect, we must note the nature of the item dealt with and ascertain the intention as expressed in the will from a consideration of the whole document. In re Will of Hamburger, 185 Wis. 270, 201 N.W. 267, 37 A.L.R. 1413. In re Will of Stephens, 206 Wis. 16, 238 N.W. 900, 902, 80 A.L.R. 134, is the following holding:

'But we must look to the language of the whole will and read it in the light of the circumstances surrounding the testator, in order to discover what was apparently in his mind at the time he made it, and thus ascertain his intention. In re Donges' Estate, 103 Wis. 497, 79 N.W. 786; Ohse v. Miller, 137 Wis. 474, 119 N.W. 93; Maxcy v. Oshkosh, 144 Wis. 238, 128 N.W. 899, 1136, 31 L.R.A.,N.S., 787; Flint v. Wisconsin Trust Co., 151 Wis. 231, 138 N.W. 629; In re Will of Ehlers, 155 Wis. 46, 143 N.W. 1050; In re Will of Smith, 165 Wis. 207, 161 N.W. 749; In re Will of Elmore, 165 Wis. 266, 162 N.W. 438; In re Will of Read, 180 Wis. 497, 193 N.W. 382.'

The one-half of the joint bank account attempted to be disposed of by the testator in his will became at the very moment of his death the property of the widow through operation of law. That specific property is gone from the estate. It is extinguished so far as the estate is concerned. It never became a part of the estate. No one could dispose of it without the owner's consent. Appellants, however, contend that it was the intention of the testator to limit the surviving spouse's one-third. The respondents, relying on the true ownership of the property, raise the question as to whether the testator, by bequeathing one-half of the bank account held in joint tenancy by himself and wife, required his widow to make an election under the provisions of sec. 233.13, Stats., and insist the answer to that question is 'no'; and they argue that in order to bring the property under the will for distribution it would have been necessary to make provision therein requiring an election by the widow to hold her property or take under the will.

The respondents' position is that the testator did not intend to take some $6,000 from the widow and give it to the residue of his estate, and that the doctrine of election is not applicable because of the lack of provisions requiring it. 'Before a testamentary beneficiary whose property is apparently disposed of by a will in question is required to make an election, the testator's intention to dispose of property which did not belong to him must clearly and unmistakably appear.' 57 Am.Jur. sec. 1557, p. 1062. 'It is important to bear in mind that the doctrine has no application unless there is 'a clear intention expressed on the part of the testator to give that which is not his property.'' Lansdale v. Dearing, 351 Mo. 356, 361, 173 N.W.2d 25, 28, 147 A.L.R. 728, referring to Story, Eq.Jur.1917, sec. 1462. The rule that a will speaks from the death of the testator is well established. In determining the testator's intention, a court considers his situation, the circumstances and conditions surrounding him at the time of the execution of the will. The will was not ambulatory beyond the life of the testator and was subject to revocation. See Lansdale v. Dearing, 351 Mo. 356, 173 S.W.2d 25, 147 A.L.R. 728.

Appellants, in their brief, state that 'it is fair to assume that he [the testator] did not know that his lifetime interest in such bank accounts would not survive his death but would pass by operation of law to his widow as surviving joint tenant.' This may be because at the time of executing the will the testator was, in fact a joint owner of the bank account, and might then have transferred a part thereof, or one-half, to anyone. If, as appellants concede, the testator believed that such interest in the bank accounts would have survived his death, he then must have intended to dispose only of his own property in giving in a general legacy one-third of his estate to his wife. It is difficult to reach the point of belief that one having control of property and mistakenly believing it will continue to be his and form part of his estate intended to take it out of his understanding of its locus and separate it so as to use it by that means to impose a limit upon the general legacy of one-third of his whole estate to his wife, and override the plain meaning of the words 'I bequeath and give unto my beloved wife one-third of my estate.' The testator here clearly intended that his widow should have one-third of his property. At the time of executing his will he included the joint interest in the bank accounts because he mistakenly believed that the title to such one-half of the joint property would survive in him upon his death. Upon his death the bank account became his widow's property, and if there was no...