Woerfel v. Interstate Heirs

• Decision Date: 24 June 1986
• Citation: 132 Wis.2d 475,392 N.W.2d 130
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. In the Matter of the Estate of SCHUYLER DEAN HOSLETT, a/k/a DR. SCHUYLER DEAN HOSLETT, a/k/a S.D. HOSLETT, a/k/a DR. S.D. HOSLETT, a/k/a DEAN HOSLETT, Deceased: PHILLIP WOERFEL, Personal Representative of the Estate, Appellant, PARK COLLEGE, Co-Appellant, v. INTESTATE HEIRS OF DECEDENT, Respondents. 85-1661.
• Court: Wisconsin Court of Appeals

Page 130

392 N.W.2d 130

132 Wis.2d 475

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

In the Matter of the Estate of SCHUYLER DEAN HOSLETT, a/k/a

DR. SCHUYLER DEAN HOSLETT, a/k/a S.D. HOSLETT,

a/k/a DR. S.D. HOSLETT, a/k/a DEAN

HOSLETT, Deceased:

PHILLIP WOERFEL, Personal Representative of the Estate, Appellant, PARK COLLEGE, Co-Appellant, v. INTESTATE HEIRS OF DECEDENT, Respondents.

85-1661.

Court of Appeals of Wisconsin.

June 24, 1986.

Circuit Court, Door County

Affirmed

Appeal from an order of the circuit court for Door county: Edwin C. Stephan, Judge.

Before CANE, P.J., DEAN and LaROCQUE, JJ.

CANE, Presiding Judge.

The estate of Schuyler Dean Hoslett and Park College appeal an order interpreting Hoslett's will and directing the estate's personal representative to recover a portion of the distributed estate assets. Because Hoslett had divorced his wife, a named beneficiary under his will, the trial court held that part of his residuary estate should pass under the intestacy laws. See sec. 853.11(3), Stats. ¹ The estate and Park College contend that bequests revoked by operation of law should not be distributed under the intestacy laws, that the trial court should have admitted extrinsic evidence indicating Hoslett's intent regarding the revoked bequest, and that the trial court should be estopped from challenging the personal representative's distribution of the estate. We disagree and affirm.

Dr. Hoslett was divorced on June 1, 1982, and died on July 21, 1982. His will left one-half of his residuary estate to his former wife, one-quarter to Park College, and the remaining one-quarter to nine named beneficiaries. ² After the Wisconsin Department of Revenue issued its closing statements and certificate, but before the trial court closed the estate, the personal representative distributed estate assets to Park College and the nine beneficiaries. The personal representative reasoned that the former wife's share should be distributed on the basis of the other beneficiaries' pro-rata shares. See sec. 853.11, Stats.

The estate and Park College argue that because the former wife's share was revoked by divorce, Wisconsin law should fill the void consistent with the testator's intent and distribute the lapsed bequest to the other named beneficiaries instead of allowing a distribution to unnamed beneficiaries under the intestacy laws. They attempt to distinguish the void created by a lapsed bequest from that created by a revoked bequest.

Section 853.11(3) provides that any provision in a will in favor of the testator's spouse is revoked by an absolute divorce. The divorced spouse whose bequest has been revoked by this statute is presumed to have predeceased the decedent. Estate of Graef, 124 Wis.2d 25, 39, 368 N.W.2d 633, 639 (1985). Hoslett's will made no distribution plan for the former wife's bequest if she predeceased him.

We see no reason to treat a revoked bequest differently from a lapsed bequest. The distinction that the estate and Park College attempt to draw has not been recognized as relevant in Wisconsin. ³ In Graef, a bequest that has been revoked by divorce is placed on the same level as a bequest that has lapsed because of death. In both situations, there is usually an oversight by the testator in that the will fails to make any specific provision for the occurrence of an event. The void arising because of a lapsed or revoked bequest can be anticipated and avoided. As a result, we interpret Hoslett's will as if his former spouse had predeceased him. Consequently, her portion of the estate must be distributed under the intestacy laws unless the testator's intent regarding the revoked bequest can be implied from the will's language.

The estate and Park College argue that the trial court should have construed Hoslett's will to gift his former wife's share to the other named beneficiaries on the basis of their pro-rata shares. The doctrine of gift by implication may be used to fill a void in the express terms of the will. Estate of MacLean, 47 Wis.2d 396, 405-06, 177 N.W.2d 874, 879 (1970). In order to read a gift by implication into a will, we must find a 'positive, disposing intent based on a contingency that did not occur.' Estate of Hillman, 122 Wis.2d 711, 715, 363 N.W.2d 588, 590 (Ct. App. 1985). We will not apply the gift doctrine to fill the gap unless the clue to the testator's intention is imbedded in the express terms of the will. Id. The gift by implication doctrine cannot be used to reform a will or correct an obvious drafting oversight of possible future events. Id. at 716, 363 N.W.2d at 590.

Here, the gift by implication doctrine is inapplicable because Hoslett's testamentary intent in the event of a bequest revoked on divorce is not discernible fropm the will's language. The estate and Park College argue that Hoslett's intent is evinced by the will's clause indicating that if any of the beneficiaries holding a 1/36 interest in the estate proceeds should predecease Hoslett, then that share should be redivided equally among the other 1/36 interest beneficiaries. They assert that this shows the intent to restrict the estate proceeds to the beneficiaries named in the will.

The estate and Park College only speculate about Hoslett's intention for distribution of the revoked bequest. It is equally plausible that Hoslett intended the beneficiaries holding a 1/36 interest to be entitled as a whole to no more than one-quarter of the total estate. We will not speculate about a decedent's intent and engage in judicial will drafting. See Estate of Connolly, 65 Wis.2d 440, 449, 222 N.W.2d 885, 889 (1974).

Next, the estate and Park College complain that the trial court erroneously refused to listen to extrinsic evidence, which would assist in determining Hoslett's intent regarding the revoked bequest. We disagree. Construction of a will is only necessary when the will's language is ambiguous. See Hillman, 122 Wis.2d at 714, 363 N.W.2d at 590. The use of extrinsic evidence along with the rules of construction assist a court to construe ambiguous language. See, e.g., Hammel v. Ziegler Financing Corp., 113 Wis.2d 73, 77-78, 334 N.W.2d 913, 915-16 (Ct. App. 1983). When the language of a will is clear and unambiguous,...