Whaley v. Avery (In re Wilkins' Estate)

• Decision Date: 08 February 1927
• Citation: 192 Wis. 111,211 N.W. 652
• Parties: IN RE WILKINS' ESTATE. WHALEY v. AVERY.
• Court: Wisconsin Supreme Court

192 Wis. 111

211 N.W. 652

IN RE WILKINS' ESTATE.WHALEY

v.AVERY.

Supreme Court of Wisconsin.

Feb. 8, 1927.

Appeal from Rock County Court; Charles L. Fifield, Judge.

In the matter of the estate of Edith Wilkins, deceased. From part of a decree construing the will, Lynn A. Whaley, administrator with the will annexed, of the estate of Athanacios Kurasethas, deceased, opposed by L. A. Avery, administrator with the will annexed of the estate of Edith Wilkins, deceased, appeals. Affirmed.--[By Editorial Staff.]

The will of Edith Wilkins, deceased, among other things, provided for a legacy of $5,000 to Kurasethas, hereinafter referred to as K., and he was also named as beneficiary, with others, under the residuary clause of the instrument.

It is conceded that K. murdered Edith Wilkins, and immediately thereafter committed suicide. The county court, upon an application made to construe the will, decreed that K. could not and did not take thereunder.Richardson & Dunwiddie and E. H. Peterson, all of Janesville, for appellant.

M. O. Mouat, of Janesville, for respondent.

DOERFLER, J.

The sole question presented on this appeal involves the effect to be given to those provisions of the will which provide certain bequests for K., under the peculiar facts and circumstances heretofore related. Our reports contain no precedent, and the question to be determined is one of first impression in this state. The exhaustive briefs presented by counsel have been of great aid to the court, and have lightened its burdens.

The record does not disclose that K., when he committed the murder, had knowledge of the will, so that in that respect the case differs from a number of others in foreign jurisdictions, where the murderer, with knowledge of the contents of a will, commits the act for the express purpose of preventing the testator from changing his will to his detriment.

In the case of Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, 9 L. R. A. (N. S.) 121, 9 Ann. Cas. 711, it is said:

“The right to take property by inheritance or by will is a natural right protected by the Constitution, which cannot be wholly taken away or substantially impaired by the Legislature. * * * So clear does it seem to us from the historical point of view that the right to take property by inheritance or will has existed in some form among civilized nations from the time when the memory of man runneth not to the contrary, and so conclusive seems the argument that these rights are a part of the inherent rights which governments, under our conception, are established to conserve, that we feel entirely justified in rejecting the dictum so frequently asserted by such a vast array of courts that these rights are purely statutory and may be wholly taken away by the Legislature.”

In Re Will of Rice, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778, this court held:

“The right to make a will is more sacred than the right to make a contract. * * * The right to make a will is * * * incidental to the right to acquire property and so [is] one of the inherent rights guaranteed by the Constitution. Its recognition antedates common and civil law. * * * It has been held sacred in all nations and under all conditions.”

It is guaranteed by section 1, art. 1, of the Constitution, and also by section 13, art. 14.

[1] The language thus quoted is clear and explicit. It contains no ambiguities, and it is expressive of a constitutional guaranty relating both to personal rights and rights of property. So firmly are the foregoing doctrines, expressed in the Nunnemacher and Rice Cases and in numerous other cases decided by this court, entrenched in the jurisprudence of this state, that any attempt at this date to modify or upset them must be deemed futile. This sacred right to make a will rests entirely with the testator, who under our law can dispose of his property in accordance with his volition, excepting only as to certain rights which are extended by statute to a specified class of persons, designed for their protection as a matter of public policy. Under this exception comes the right of a widow to renounce the provisions of the will by accepting her statutory rights of dower. A testator may ignore wholly, if he desires, those in close relation to him by ties of blood, and he may bestow his devises and bequests upon persons who are ordinarily not deemed the objects of his bounty. Nor is anyone permitted to make a will for him; neither can the courts change or modify a will, or substitute in its place one which they deem more equitable and just, for to permit this would destroy the sacredness of a will, and would substitute in its place the will of another.

In approaching, therefore, the consideration of the important issue confronting us, we must not lose sight of these and other fundamentals, and we will endeavor to harmonize our holding with them, instead of modifying or upsetting them. It is said that “law” is the perfection of human reason. In a democratic form of government like our own, it is designed to promote human welfare. It recognizes the rights of persons and of property, and, to vindicate such rights and to secure remedies for the infringement thereof, courts are created and established. Each branch of the government is supreme in its field, and, if one branch invades the territory of another, contrary to the fundamental law, it results in an attack upon the very foundation of the government itself, and the result must necessarily be disastrous and revolutionary in its nature.

[2] Under the provisions of section 238.14 of the Statutes, “the power to make a will implies the power to revoke the same.” Edith Wilkins, therefore, not only had the sacred right to make the will in question, but she also possessed the right and power at any time during her life to revoke the same, and the power of revocation is equally as sacred as the power of making. It not infrequently happens that a testator arrives at a determination to revoke or modify his will, but, before he is enabled to effectuate a change or revocation, he meets with sudden death by accident or disease. Such occurrences, however, cannot affect the enforcement of the will so made, regardless of the high degree of proof that may be offered with respect to the testator's determination. In instances like these, section 238.14 of the Statutes comes into operation, for it determines how a will or any part thereof may be revoked or modified. A beneficiary under a will may be guilty of the commission of an atrocious crime upon the testator, which may result in suffering and eventual death. Still, if the testator lives a reasonable time after the commission of the offense, and during such time retains his competency to make a new will or to revoke or modify the one already made, but fails or refuses to make a change,the will nevertheless becomes effective and must be enforced in accordance with its terms, and the offender will take thereunder, provided he is a beneficiary, notwithstanding his offense.

[3] The commission of crime does not disqualify one from taking under a will, unless it be under facts and circumstances as appear in the instant or similar cases. Under the facts in the instant case, the shooting of Edith Wilkins resulted in instantaneous death. K. survived her but a few seconds at most, and his act of suicide by shooting also resulted in instantaneous death. Had the death of both parties resulted from disease or from accident, there can be no question but what the survivor would take, even though he survived for the short period of a second. Edith Wilkins lost her life as the result of the premeditated act of K., and such fact distmguishes this case from the other incidents above alluded to. By the commission of murder, she was by the very act of the murderer deprived of the sacred right to change her will in accordance with her volition. Such a right, as has already been stated, was inherent in her, was sacred, and of this right she was deprived.

Under the civil law, as it obtained for centuries in European countries where it was adopted, a murderer could not take property devised or bequeathed to him in a will under circumstances existing in the instant case. Such was and is also the rule under the “Code Napoleon.” This is likewise true under the common law in England. In fact, this seems to be the rule quite generally recognized in the law of all civilized nations. See the following cases and authorities cited in respondent's brief, viz: Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819;Wall v. Pfanschmidt, 265 Ill. 180, 106 N. E. 785, L. R. A. 1915C, 328, Ann. Cas. 1916A, 674; 28 R. C. L. 75; 40 Cyc. 1063; Wharton on Homicide (3d Ed.) § 665. In 40 Cyc. 1063, it is said:

“Under the...