Stone v. Stone (In re Waterbury's Will)

• Decision Date: 13 June 1916
• Citation: 158 N.W. 340,163 Wis. 510
• Parties: IN RE WATERBURY'S WILL. STONE v. STONE.
• Court: Wisconsin Supreme Court

163 Wis. 510

158 N.W. 340

IN RE WATERBURY'S WILL.STONE

v.STONE.

Supreme Court of Wisconsin.

June 13, 1916.

Kerwin and Vinje, JJ., dissenting.

Appeal from Circuit Court, Sauk County; James O'Neill, Judge.

Action by Orlando E. Stone, executor, against Luman W. Stone to construe the will of Fidelia M. Waterbury. From a judgment of the circuit court reversing the judgment of the county court, the executor appeals. Reversed and remanded, with directions.

Construction of will. On November 16, 1912, Fidelia M. Waterbury executed a will, which, omitting the signature, attestation clause, and clause appointing the executor, is as follows:

“Know all men by these presents that I, Fidelia M. Waterbury, of the village of Prairie du Sac, in the county of Sauk, and state of Wisconsin, being of sound mind and memory and mindful of the uncertainty of human life, do make, and publish and declare this my last will and testament in manner following, to wit:

First. I give, devise and bequeath to my sister Martha M. Ried the sum of four thousand dollars ($4,000).

Second. I give, devise and bequeath to my brother Luman W. Stone the sum of five hundred dollars ($500).

Third. I give, devise and bequeath to my niece Emma A. Wakely the sum of three thousand dollars ($3,000).

Fourth. I give, devise and bequeath to Nellie M. Wakely (daughter of my said niece Emma A. Wakely) the sum of two thousand dollars ($2,000).

Fifth. I give, devise and bequeath to Eben Stone Wakely (son of my said niece Emma A. Wakely) the sum of two thousand dollars ($2,000).

Sixth. I give, devise and bequeath to Hugh Davis Crawford, son of Charles Crawford and wife Bell the sum of one thousand dollars ($1,000).

Seventh. I give, devise and bequeath to the First Presbyterian Church of Prairie du Sac, Wisconsin, the sum of five hundred dollars ($500).

Eighth. I give, devise and bequeath to the Sauk Prairie du Sac Cemetery Association the sum of five hundred dollars ($500), the same to be invested and the net income therefrom shall annually be used and expended, first on the proper care of the James I. Waterbury lot in said cemetery, and the surplus if any shall be expended in care of the cemetery generally.

Ninth. I hereby direct that all the rest, residue and remainder of my estate, real, personal or mixed, shall be divided into five equal shares or parts, and I give, devise and bequeath one of such shares or one-fifth of all the rest, residue and remainder of my estate to my sister, Martha M. Ried, and one share or one-fifth of the rest, residue and remainder of my said estate I give, devise and bequeath to the children of my deceased brother John C. Stone, and one share or one-fifth of said residue I give, devise and bequeath to the children of my deceased brother Ransom E. Stone, and one share or one-fifth of said remainder I give, devise and bequeath to the children of my deceased brother, Orvil Stone, and the other share or one-fifth of the rest, residue or remainder of my said estate I give, devise and bequeath to my said niece Emma A. Wakely, daughter of my deceased brother, Ryland Stone.”

The sister Martha predeceased the testatrix, leaving no issue, and the single question presented upon this appeal is whether by the death of Mrs. Ried, the testatrix's sister and one of the several residuary legatees, before the death of the testatrix, the share of the residue which would otherwise have been allotted to her augmented the shares of the several other residuary legatees, or whether such share remained undisposed of by the will and was subject to be assigned as intestate property. The county court held that that part of the residue which would have been allotted to her should be divided among the remaining residuary legatees and entered judgment accordingly. The matter was appealed to the circuit court, and upon a hearing in said court the judgment of the county court was reversed, and judgment entered directing the county court to assign the part which would have gone to Mrs. Ried to the heirs at law of the testatrix, Fidelia M. Waterbury. From the judgment of the circuit court, the executor appeals.William T. Kelsey and Olin, Butler, Stebbins & Stroud, all of Madison, and James H. Hill, of Baraboo, for appellant.

Grotophorst, Evans & Thomas, of Baraboo, for respondent.

ROSENBERRY, J. (after stating the facts as above).

[1] The county court and the circuit court both held that the legacy of $4,000 provided for in clause 1 of the will lapsed by reason of the death of Martha M. Ried and became a part of the residuum of the estate of the testatrix.

It does not appear how long before the death of the testatrix Martha M. Ried died. Appellant contends that the intent of the testatrix is clear, and that all arbitrary rules of law devised merely as aids to the ascertainment of testamentary intent are not to be applied in cases where the intent of the testatrix can be ascertained from the instrument itself, and cites Ohse v. Miller, 137 Wis. 474, 119 N. W. 93;Will of Ehlers, 155 Wis. 46, 143 N. W. 1050;In re Donges' Estate, 103 Wis. 497, 79 N. W. 786, 74 Am. St. Rep. 885; Will of Boeck, 160 Wis. 577, 152 N. W. 155, L. R. A. 1915E, 1008;Will of Reynolds, 151 Wis. 375, 138 N. W. 1019.

Respondent contends that the gift to the five branches of the family named in clause 9 was not a gift to a class, but was a gift to them as individuals; that therefore the provision as to Martha M. Ried lapsed, and her share passed to the heirs of Mrs. Waterbury as intestate property, one of whom was Luman W. Stone, respondent, named as legatee in the second clause, and cites 40 Cyc. 1473, 1474; In re Fassig Estate, 82 Misc. Rep. 234, 143 N. Y. Supp. 494;Matter of Kimberly, 150 N. Y. 90, 44 N. E. 945;Lyman v. Coolidge, 176 Mass. 7, 56 N. E. 831;Dresel v. King, 198 Mass. 546, 85 N. E. 77, 136 Am. St. Rep. 459; Estate of Wells, 113 N. Y. 396, 21 N. E. 137, 10 Am. St. Rep. 457;Workman v. Workman, 84 Mass. (2 Allen) 472;Claflin v. Tilton, 141 Mass. 343, 5 N. E. 649;Frost v. Courtis, 167 Mass. 261, 45 N. E. 687;Kimball v. Story, 108 Mass. 382;Horton v. Earle, 162 Mass. 448, 38 N. E. 1135;Wood v. Seaver, 158 Mass. 411, 35 N. E. 587;Sharpless' Estate, 214 Pa. 335, 63 Atl. 884;Parsons v. Millar, 189 Ill. 107, 59 N. E. 606;Mowry v. Taft, 36 R. I. 427, 90 Atl. 815;In re Murphy Estate, 157 Cal. 63, 106 Pac. 230, 137 Am. St. Rep. 110; Page on Wills, § 474.

The claim of the respondent is based largely, if not entirely, upon the peculiar language of the ninth clause, whereby the residue is divided into five equal shares, and one of these shares is assigned to each of the five legatees or groups of legatees therein named. Applying to this language the rule as stated in 40 Cyc. 1474, “Where at the time of making a gift the number of...