Opinion
March 13, 1940 —
April 9, 1940.
APPEAL from an order of the county court of Dane county: GEORGE KRONCKE, Judge. Reversed.
O. B. Porter of Madison, for the appellant.
Frank W. Lucas of Madison, and J. Harry Schad of Gainesville, Florida, for the respondent.
Petition by the Union Trust Company, executor, on August 22, 1939, for a construction of the will and two codicils of James Melville, deceased. From an order construing the second codicil to have revoked a bequest to James Rodney Melville, this appeal is taken by his guardian ad litem, O. B. Porter.
On April 22, 1922, James Melville and his wife, Velma C. Melville, executed a joint will, granting certain bequests to each of their three adopted children, making other minor bequests, and granting the residue to appellant. By the terms of the will James Rodney, appellant, was to get $20,000, Marie Louise, respondent, $10,000, and Edna Geraldine, $10,000. The other bequests which were made are here immaterial. The will contained a provision that on the death of one of the joint makers, the survivor could change the disposition of property if circumstances or conditions occurred which made the survivor think the disposition made by the joint will was improper. In 1924 Mrs. Melville died, and her will was admitted to probate in the Dane county court on October 8, 1924. The first codicil, executed July 27, 1929, changed the guardianship of James Rodney, hereinafter referred to as "Rodney," by making the Union Trust Company the testamentary guardian in place of Marie. Terms of the first codicil in no way affect this action. Pursuant to the power granted in the joint will, James Melville altered the disposition of the property by a second codicil executed September 14, 1934. The second codicil was drawn by an attorney after consultation with the testator at the Union Trust Company. This attorney never did any other work for the testator. The terms of the second codicil give rise to this controversy. In it, following the introduction, is paragraph I which refers to the power given in the joint will to the survivor to change the will after the death of the other. In this paragraph the testator declared his feeling to be that the disposition of property to Edna, Rodney, and Marie was improper. Paragraph II revoked the legacy of $10,000 to Edna, and gave her in lieu thereof $1,000. Paragraph III, the last paragraph, being the heart of this case, is as follows:
"I do hereby revoke and rescind the bequest and devise of the rest and residue of said estate, after the payment of expenses and satisfaction of the legacies set forth in said joint last will and testament as amended to James Rodney Melville, and in lieu thereof I give, devise and bequeath all the rest, residue and remainder of said property, whether real or personal, one half thereof unto the Union Trust Company of Madison, Wisconsin, its successor or successors, in trust, nevertheless, for James Rodney Melville, said trust to be executed upon the identical terms and conditions set forth in the codicil to said joint last will and testament dated July 27, 1929, and the remaining one half thereof, to Marie Louise Melville Bates, her heirs and assigns forever."
This second codicil, according to the appellant, makes but two changes in the will, namely, (1) to reduce Edna's legacy by $9,000 and put that amount in the residue, and (2) instead of the residue going to Rodney alone, it was to go to Rodney and Marie in equal portions. From an order that the $20,000 bequest to the appellant was "abrogated, revoked and eliminated" by the second codicil, the appellant, by his guardian ad litem, appeals.
From within the four corners of the will and codicil it appears that the testator had in mind making a change which would result in an increase in the amount which would be disposed of by the residuary clause of his will. He intended to change the arrangement made in the will and the first codicil with respect to the residuary clause so that instead of leaving the residue of his estate to Rodney, it would be divided between Rodney and Marie.
The language used being plain and free from ambiguity, there is no occasion for considering the evidence offered by appellant and the rulings thereon in the court below. There is no accepted rule for the construction of a will, nor is there any general rule of syntax, which permits the reading out of the second codicil the intention of the testator to limit the change to the residuum of the estate after deducting $9,000 from a bequest to Edna. It is evident from a reading of the codicil that the testator intended to make a change in that part of the will and in those particulars only, so far as Rodney and Marie are concerned. He did so by taking out $9,000 from the bequest theretofore made to Edna, putting the amount in the residue, and then granting the residue to Marie and Rodney in equal parts. The residue had originally gone to Rodney alone. Rodney's altered portion, however, was left in trust with the Union Trust Company as trustee.
A codicil does not revoke a will unless the testator's intention so to revoke is clear. 1 Page, Wills (2d ed.), p. 697, § 438; 2 Page, Wills (2d ed.), p. 2365, § 1415, p. 2389, § 1422; Thompson, Wills (2d ed.), p. 218, § 167; Moore v. Moore, 138 Wis. 602, 120 N.W. 417. The provisions of a will or codicil will not be construed to cut down a gift already made, unless that intention be shown by definite and positive words. Will of Richter, 215 Wis. 108, 254 N.W. 103; Will of Loewenbach, 222 Wis. 467, 269 N.W. 323.
In the court below considerable importance was attached to a letter which had been written by the testator to Rodney reviewing his conduct and criticizing it from the standpoint of the father. That letter was dated May 19, 1934. It was argued there and here that this letter disclosed a feeling of great disappointment as to the development of Rodney, and an inclination to cease regarding him as a fit subject for the testator's bounty. The adopted father did not go further than to express a hope for a change of conduct so Rodney's actions would be a credit to the name that had been conferred upon the boy by his adoption into the family.
None of the many rules devised to assist in the discovery of testator's intent should be permitted to, interfere with the manifest intention disclosed by the will itself, and no rule of construction is more effective to discover the testator's intention than that which requires that words shall be given their plain and ordinary meaning. The words used by the testator in this instance are final and comprehensive, and so clear as to leave no room for extrinsic evidence. 3 Woerner, American Law of Administration (3d ed.), p. 1397, § 421.
The language of the codicil is plain, and the meaning there . expressed must control. Nothing is done with respect to the bequest and devise to Rodney or the bequest and devise to Marie except to rearrange the residue so that whatever there is left will be divided between them.
The contention is made that the evidence fairly intimates there will be no residue of consequence after the special legacies have been paid, but the testator was not influenced by that thought. He certainly took $9,000 out of one legacy and consigned it to the residue. He plainly intended to equalize the distribution of a residue between Marie and Rodney. Whether he had in mind at that time giving real estate in Florida to Marie does not appear, nor is it of any consequence. The adjustment of the distribution between his adopted children was for him to determine, and we are of the opinion that he made his determination sufficiently plain.
By the Court. — Order reversed, and cause remanded with directions to enter an order construing the will in accordance with this opinion.
ROSENBERRY, C.J., and FRITZ, J., dissent.