Pauly's Will, Matter of

• Decision Date: 03 February 1976
• Docket Number: No. 551,551
• Citation: 71 Wis.2d 306,237 N.W.2d 719
• Parties: In the Matter of the Trust created under the Last WILL and Testament of Amalia Huebschmann PAULY, Deceased. Francis C. WILSON, Appellant, v. FIRST WISCONSIN TRUST COMPANY, Trustee, and Richard H. Eggleston, Respondents. (1974).
• Court: Wisconsin Supreme Court

Page 719

237 N.W.2d 719

71 Wis.2d 306

In the Matter of the Trust created under the Last WILL and

Testament of Amalia Huebschmann PAULY, Deceased.

Francis C. WILSON, Appellant, v. FIRST WISCONSIN TRUST COMPANY, Trustee, and Richard H.

Eggleston, Respondents.

No. 551 (1974).

Supreme Court of Wisconsin.

Argued Nov. 25, 1975.

Decided Feb. 3, 1976.

Briefs by: John W. Emmerling and Edward D. Styles, Milwaukee, argued by: John W. Emmerling, Milwaukee, for appellant.

Brief by: Kasdorf, Dall, Lewis & Swietlik, Milwaukee, argued by: Russell M. Ware, Milwaukee, for respondent Richard H. Eggleston; Russell M. Ware, Milwaukee, of counsel.

HANLEY, Justice.

The sole issue, which is dispositive of this appeal, is whether the doctrine of gift by implication is appropriate to the trust provision of a will that is silent as to the disposition of the trust under the circumstances that have occurred.

As not infrequently occurs, the decedent has provided relatively clear instructions for the disposition of property under certain circumstances which unfortunately have not taken place. In the silence of the testatrix, one of her grandchildren urges intestacy while the heir of another proposes a 'gift by implication.' The trial court accepted the latter proposition.

Gifts by implication were reviewed in the recent case of Estate of Connolly (1974), 65 Wis.2d 440, 459, 222 N.W.2d 885. From the Estate of MacLean (1970), 47 Wis.2d 396, 177 N.W.2d 874, three requirements were noted as necessary for the application of a gift by implication.

'. . . (a) '. . . an omission to cover the contingency which subsequently arose, . . .' (b) '. . . the ascertainment of the intention of the testator from all the words used in the will in the light of surrounding circumstances to fill in a void or an omission in the expressed terms of the will. . . .' (c) that the '. . . clue to the intention is imbedded in the words of the will . . .." Connolly, supra, 65 Wis.2d at 461--62, 222 N.W.2d at 896.

Most importantly, MacLean noted that the doctrine is not to be used to reform a will 'or correct an obvious mistake or an oversight by the draftsman.' Id. at 405, 177 N.W.2d at 879. Certainly ambiguities in a testamentary disposition may receive construction, and courts may correct mistakes in light of the decedent's intent; for an omission, however, the only recourse is the possibility of a gift by implication.

In analysis of the trust provision, the trial court first took notice that the final judgment in probate of the will entered on January 27, 1938 contained an apparent construction of the trust language. Instructions were given to the trustee to distribute the trust property in equal shares to Francis and Annette upon Francis' having reached age thirty and upon both Francis Huebschmann and Elsa Pauly Wilson being dead. The trial court rejected the conclusiveness of this interpretation on the basis of Sec. 310.11, Stats., 1969 (now Sec. 836.21) and Estate of MacLean, supra, because the parties in interest at that time had not been notified that construction of this provision was being undertaken. In addition, no record of the reasons for the interpretation was preserved.

The trial court was in error to state that the trust provision required construction, a construction that would alleviate the presumption of intestacy that was violated by the omission. The general rule is that construction arises only if language is ambiguous. Will of Wehr (1967), 36 Wis.2d 154, 179, 152 N.W.2d 868. Omission of a circumstance here is not ambiguity of language and is not that uncertainty of meaning, Will of Boeck (1915), 160 Wis. 577, 580, 152 N.W. 155, that justifies judicial construction.

The case law cited by appellant does not, as is contended on the other hand, stand for the proposition that judicial scrutiny of the provision is inappropriate. Certain cited decisions that repudiate the presumption against intestacy as a basis for construction are cases where the intestacy is clearly sought or where a gift by implication is not probable. Colonial Bank & Trust Co. v. Stevens (1972), 163 Conn. 612, 316 A.2d 768; In re Beldon (1938), 11 Cal.2d 108, 77 P.2d 1052; In re Butler's Will (1957), 9 Misc.2d 892, 170 N.Y.S.2d 767; In re Dobrovolny's Estate (1958), 182 Kan. 138, 318 P.2d 1053. It was error to say that the presumption against intestacy, however, created an uncertainty in the trust provision. The proper course is to note that the provision is silent under the circumstances, and that the court may review the will to see if the gap is filled by implication. Such scrutiny is not 'construction.' Guides to the testatrix' intent, such as the presumption against intestacy, may be considered within this analysis. Simes and Smith, Law of Future Interests (1956), sec. 842, pp. 327--28, & sec. 844.

The trust provision in the Pauly will was a residuary disposition of all of the testatrix' estate. Income for life was provided for her brother and daughter. If her daughter, Elsa Pauly Wilson, died before her grandson reached age thirty, the testatrix provided that both of her grandchildren would receive this income and eventually take the corpus when the grandson attained that age. No explicit mention of a disposition was made if Elsa was still living when her son became thirty and the conditional disposition failed.

Appellant argues that his absence demonstrates a reversionary interest (A 'possibility of reverter upon the simultaneous creation of a fee simple determinable,' Sec. 700.04(1), the latter being a defeasible fee simple 'automatically expiring upon the occurrence of a stated event . . .' which 'can be either the happening, or the nonhappening, of a specified occurrence, and can be either certain or not certain to happen;' Sec. 700.02(2), Stats.) that passed by intestacy to Elsa Pauly Wilson when appellant reached age thirty in 1945. Since the life estate and fee then merged, the trust should have ceased and distributed to Elsa or her assigns; in this case, as the sole assignee upon her renunciation, Francis would take the entire proceeds.

In his contention, the appellant does not go so far as to urge that this situation was intended by the testatrix. It is claimed only as a highly probable result, among others, that can be presumed within the testatrix' contemplation. We do not agree with the above contention. A review of the will language leads irresistably to the conclusion that the testatrix had in mind the intention that upon the termination of the life estate of Elsa Pauly Wilson, the trust should be terminated and the corpus should be distributed to the grandchildren.

In the case of In re Donges's Estate (1899), 103 Wis. 497, 500--01, 79 N.W. 786, the testator had provided that if none of his children lived at the time of his death, then his wife was to be sole owner of his real estate. He first provided that she take this estate and its income until the youngest of the children attain the age of twenty-one years. Since he died in fact with spouse and children surviving, the court held:

'A careful reading of the whole will leads us irresistibly to the conclusion that the testator had in mind the intention that upon the majority of the youngest of his after-born children the real estate, which meanwhile was devised to his widow, should pass to them . . ..' Id. at 503--504, 79 N.W. at 788.

Will of Schneider (1955), 268 Wis. 610, 68 N.W.2d 576 contained a provision somewhat similar to the one in question here. The testator created a trust allowing his daughter income for five years. He further provided that if she should did before such time allotment, then the trust was to continue until her youngest child reached its majority. At that time the corpus was to be divided and distributed to the children and her husband. No provision was made for the actual occurrence of her survival past the five year period. Rejecting arguments as to the demonstrated intention of intestacy by the testator's son, this court noted substantial grants in his favor and the clear implication that the trust was to cease in the daughter's favor. The provisions for distribution otherwise were viewed as precautions for her early demise.

The rationale employed by these cases are consistent with the nature of the phrase 'by implication.' When an omission is discerned, the doctrine is applied to correct the gap that occurred perhaps by faulty craftsmanship, but which is clearly covered by the...