Perigo v. Perigo

• Decision Date: 04 June 1954
• Docket Number: No. 33489,33489
• Citation: 64 N.W.2d 789,158 Neb. 733
• Parties: PERIGO et al. v. PERIGO.
• Court: Nebraska Supreme Court

Page 789

64 N.W.2d 789

158 Neb. 733

PERIGO et al. v. PERIGO.

No. 33489.

Supreme Court of Nebraska.

June 4, 1954.

Syllabus by the Court.

1. Extrinsic evidence is not admissible to determine the intent of the testator as expressed in his will unless there is a latent ambiguity. Such evidence is not admissible to determine the intent of the testator where the ambiguity is patent and not latent.

2. A patent ambiguity is one which appears upon the face of the instrument, which must be removed by construction according to settled legal principles and not by evidence, and the intention of the testator is to be determined from the four corners of the will itself.

3. In searching for the intention of the testator the court must examine the entire will, consider all its provisions, give words their generally accepted literal and grammatical meaning, and indulge the presumption that the testator understood the meaning of the words used.

4. The intention of the testator as determined from the will must be given effect if it is not inconsistent with any rule of law.

5. The intention within the ambit of this rule is the one the testator expressed by the language of the will and not an entertained but unexpressed intention.

Bertrand V. Tibbels, Scottsbluff, for appellants.

Townsend & Youmans, Scottsbluff, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiffs James Roland Perigo and Lucille Broshears, assignees of Earl Perigo, Alice Lowell, Lucy Houghland, Mary Smith, and Homer Perigo, having the alleged rights of remaindermen, brought this declaratory judgment action against defendant Christena Mary Perigo, testator's surviving widow, seeking construction of the will of Eugene Perigo who died testate on March 12, 1952, in Soctts Bluff County, and to obtain injunctive together with general equitable relief.

The following is conceded: On April 19, 1952, the will executed on December 19, 1951, was duly admitted to probate and defendant was appointed and qualified as executrix in conformity therewith, without objection; as such, she took possession of all the real and personal estate of testator and in that capacity has attempted to and negotiated a sale of part of such property; and that Earl Perigo, Alice Lowell, Lucy Houghland, Mary Smith, and Homer Perigo are the only heirs at law of testator.

Plaintiffs in their petition alleged that the personal property and income from the realty of the estate was more than sufficient to supply defendant with the usual luxuries and customary necessaries, and sale of the property or any part of it or the use of the principal of the estate was wholly unnecessary for defendant's support and maintenance or preservation of the estate, and unless defendant was enjoined from doing so, the estate would be unnecessarily sold, conveyed, or wasted. Defendant's answer denied those allegations and alleged that sale of a portion of the realty was necessary in order to pay claims against the estate together with costs and expenses of administration, and other necessary charges.

Plaintiffs also alleged that it was the intention of testator in his will: (1) To confer upon defendant only the use of so much of the income from the property during her lifetime as should be necessary for defendant's comfort, support, and maintenance in accord with standards established by testator during his lifetime; (2) that he gave defendant the power of sale only for the purpose of preserving the estate, or if the income should be insufficient to maintain her as aforesaid; and (3) that the proceeds of any property sold by defendant should descend to plaintiffs and no part of the estate ever descend to the heirs of defendant, but that all property which was not necessary for her maintenance as aforesaid should descend to plaintiffs, his heirs, the remaindermen named in the second paragraph of his will. The answer of defendant denied those allegations, alleged that terms of the will were clear and unambiguous, requiring no construction, and prayed for dismissed of plaintiffs' petition.

After hearing, whereat evidence was adduced in the form of admissions and stipulations together with certain related exhibits, the trial court rendered its judgment construing the will in some material respects contrary to plaintiffs' contentions, denying any injunctive relief, and taxing costs to plaintiffs. Therefrom plaintiffs appealed to this court, separately assigning that the trial court erred in making certain findings and construing the will in several respects hereinafter discussed, and erred in denying injunctive relief. We conclude that the assignments should not be sustained. In that connection also, it should be noted that defendant did not cross-appeal.

Insofar as important here, testator's will provided: 'First, I direct that all my just debts, including the expenses of my last illness and burial and the expenses of administering my estate, shall be paid by my executrix as soon after my death as may be practicable.

'Second, All the rest and residue of my property of every kind and nature wherever situate and of which I may die seized or possessed or of which I may have the power of disposal at the time of my death, I give, devise, and bequeath unto my beloved wife, Christena Mary Perigo, for her use during her natural life, hereby giving unto my said wife the power of sale of any and all of said property of every kind and nature and wherever situate, and the use, disposition, expenditure, application, and investment, of the proceeds of any such sale as her own separate property; provided, however, that upon the death of my said wife, if any of said property shall not have been sold by her during her lifetime, then after the payment of the expenses of her last illness, her funeral charges, the expense of administration of her estate, and the payment of all debts which she may have contracted, all from the part of said property which she may not have sold during her lifetime, I give, devise, and bequeath the rest and residue thereof as follows, to-wit 'A. One-third thereof to my sister, Alice Lowells, of Boonville, Indiana, if she be living at the time of the death of my said wife, otherwise to the heirs at law of my said sister, Alice Lowells, share and share alike, who may be living at the time of the death of my said wife.

'B. One-third thereof to my brother, Earl Perigo, of Marion, Kentucky,' in like manner as aforesaid.

'C. One-third thereof as follows, to-wit:

'1. One-third of said one third to my niece, Lucy Houghland, of Evansville, Indiana,' also in like manner.

'2. One-third of said one-third to my niece, Mary Smith, of Boonville, Indiana,' also in like manner.

'3. One-third of said one-third to my nephew, Homer Perigo, of Boonville, Indiana,' also in like manner.

'Third, I hereby nominate and appoint my beloved wife, Christina Mary Perigo, as and for executrix of this my last will and testament, hereby giving unto my said executrix full power of sale of any and all property, of every kind and nature, whereever (sic) situate without leave or license of any court.'

As we view it, there is no controverted material issue of fact, and no latent ambiguity appears in the will. The ambiguity, if any, is entirely patent, and extrinsic evidence was not admissible or controlling in a determination of the intention of testator.

In Jacobsen v. Farnham, 155 Neb. 776, 53 N.W.2d 917, 918, 33 A.L.R.2d 543, this court held: 'Extrinsic evidence is not admissible to determine the intent of the testator as expressed in his will unless there is a latent ambiguity. Such evidence is not admissible to determine the intent of the testator where the ambiguity is patent and not latent.

'A patent ambiguity is one which appears upon the face of the instrument, which must be removed by construction according to settled legal principles and not by evidence, and the intention of the testator is to be determined from the four corners of the will itself.'

As recently as Kramer v. Larson, 158 Neb. 404, 63 N.W.2d 349, 350, this court held: 'A patent ambiguity in a will must be removed by interpretation according to legal principles and the intention of the testator must be found within the four corners of the will.

'In searching for the intention of the testator the court must examine the entire will, consider all its provisions, give words their generally accepted literal and grammatical meaning, and indulge the presumption that the testator understood the meaning of the words used.

'The intention of the testator as determined from the will must be given effect if it is not inconsistent with any rule of law.

'The intention within the ambit of this rule is the one the testator expressed by the language of the will and not an entertained but unexpressed intention.'

Also, as early as Hill v. Hill, 90 Neb. 43, 132 N.W. 738, 38 L.R.A.,N.S., 198, this court held: 'It is the duty of the courts in construing a will to carry into effect the true intent of the testator, so far as that intent can be collected from the whole instrument, if not inconsistent with the rules of law; but the law imputes to the testator a knowledge of those rules, and he will be presumed to have executed his will with an understanding that the objects of his bounty may demand their portions in accordance therewith.'

Part 'Second' of the will here involved is that portion which must be construed in the light of language used therein and that appearing in related parts 'First' and 'Third' heretofore set forth. Preliminary to a discussion thereof and determination of plaintiffs' contentions with regard to injunctive relief, there are certain basic facts which we summarize for clarity and convenience. Defendant was the second wife of testator. They were married March 27, 1932, following the death of testator's first wife in 1930, without children surviving. Also,...