Opinion
May 3, 1950 —
June 6, 1950.
APPEAL from part of a judgment of the county court of Sauk county: HENRY J. BOHN, Judge. Reversed.
For the appellant there was a brief by Brindley Brewer and James G. Robb, all of Richland Center, and oral argument by F. L. Brewer.
For the respondents there was a brief by Hill, Miller — Hill of Baraboo, and oral argument by James H. Hill, Jr., and James H. Hill Sr.
On February 9, 1949, Harry E. Kjorstad, executor of the will of L. E. Montgomery, deceased, petitioned the court for a construction of said will. Paul Montgomery, a son and one of the beneficiaries, appeals from part of the judgment, dated December 30, 1949, construing the will.
On February 1, 1901, the testator, L. E. Montgomery, was a married man with several children, residing upon his father's farm in Sauk county and working thereon for him. L. E. Montgomery and his family resided in an old log house upon the farm. On the date last mentioned, he bought eighty acres adjoining his father's farm which was known as the "Murray farm," and moved there with his family. His father died in 1916, leaving the testator, his brother, Charles, and his sister, Sarah, as his sole heirs at law. The two brothers purchased their sister's interest in the farm and later divided it. L. E. Montgomery took one hundred thirty-one acres adjoining the Murray farm as his portion thereof. From that time until testator's death the whole two hundred eleven acres were operated as one farm.
The testator operated and resided upon this farm until 1929, when he purchased a home in Reedsburg, and moved there to live. After 1929 Paul Montgomery, son of the testator, operated the farm as a tenant.
A few days prior to February 19, 1943, L.E. Montgomery wrote a letter to Mr. Kjorstad, an attorney, who also resided in Reedsburg, asking him to draft a will pursuant to instructions contained therein. Mr. Kjorstad was not well acquainted with Mr. Montgomery and did not know what his estate consisted of. The will was drafted and on February 19, 1943, Mr. Kjorstad took it to the Montgomery home where, after L.E. Montgomery read it and stated it was the way he wanted it, the will was duly executed. The letter of instructions was destroyed. The pertinent paragraphs of the will are as follows:
"After the payment of all of my just debts and funeral expenses, it is my will that my wife shall take from my estate only that property which would descend to her in the event that I died without a will.
"It is further my will that all of the balance of my home farm together with all of my equipment, stock, tools, hay, and grain shall go to my son, Paul Montgomery upon the condition, however, that he shall pay to my daughter Vernie O'Connor the sum of three hundred dollars ($300) and that he shall pay to my daughter Gladys Gee the sum of two hundred dollars ($200).
"It is further my will that all of the rest, residue, and remainder of my estate shall be divided in equal shares, share and share alike, between my children who may be left surviving me."
Following the death of the testator in August, 1948, the will was admitted to probate. His estate consisted of the farm, which was appraised as a unit, some farm personal property thereon, and a certificate for one share of stock in a corporation. The home in Reedsburg was owned in joint tenancy with his wife.
Further facts will be stated in the opinion.
The sole question to be determined is the intention of the testator in using the phrase "all of the balance of my home farm." In other words, what did the testator have in mind when that phrase was used on the date of the execution of his will?
It is difficult to frame a definition of the word "home," as it has many implications. In its ordinary and usual sense the word "home" refers to the house in which one lives with his family, together with the land upon which it is located, and which is used in connection therewith. This usual meaning is not applicable in this instance as the testator was not living upon the property at the time he executed the will. The word "home" is sometimes used to refer to the particular place in which one was born or reared. Testator was apparently born and reared on the farm of which the one hundred thirty-one acres was originally a part. There is no contention by anyone that the testator meant the one hundred thirty-one acres when he referred to the "home farm."
The trial court felt there was a latent ambiguity in the expression used and permitted the introduction of extrinsic evidence to help determine the intention of the testator. This evidence was oral and was to the effect that the testator often referred to the one hundred thirty-one acres as the "old place." There is also some evidence in the record that the eighty acres were referred to as the "Murray farm." There is no evidence in the record that the testator ever referred to anything as the "home farm." All of this evidence referred to statements made by the testator while he was residing upon his farm. In other words, all of the statements were made by him prior to the year 1929. The testimony is remote as to time and offers no aid in determining the intention of the testator in February, 1943.
Without the benefit of any reference by the testator to indicate what he meant by the "home farm" we must look to the manner in which he acted when dealing with the property. It is undisputed that he operated the entire two hundred eleven acres as one farm from 1918 to 1929, while he lived thereon. He rented it as one farm unit from 1929 until the time of his death. He owned but one farm. We are forced to conclude, therefore, that when he referred to the "home farm" in his will he meant the entire tract of two hundred eleven acres.
Attention has been called to the residuary clause, and it is contended that the testator meant by that clause to dispose the one hundred thirty-one acres. He owned a home in Reedsburg in joint tenancy with his second wife, who might have died before the testator. In that event the home would have been devised by the residuary clause, and it is good practice always to include such a clause in the event of a change in the property holdings and financial standing of the testator. The argument has weight, but is not controlling.
By the Court. — That part of the judgment appealed from is reversed and cause remanded with instructions to enter judgment in accordance with this opinion.
In my judgment, the opinion filed in this case does not give due consideration or significance to language used in the will. The words "home farm," as used, were intended to describe a piece of land on which the testator first established his home. Those words in association with the creation of the residuary clause seem to clearly disclose the intention of the testator. The evidence warranted the conclusion reached by the court below. The trial .judge said in his memorandum:"In the year of 1901 L.E. Montgomery, then having arrived at majority and having a family of his own, purchased eighty acres adjoining the old farm of the father. This was known as the `Murray Farm.' After purchasing this farm he moved upon it with his family and there they lived for many years." The evidence discloses that the eighty acres that he bought from Murray was the home where his children were born and naturally would be the piece of property in mind when the term "home place" or "home farm" or "old place" was used. The court's construction which eliminates the word "home" from "home farm" eliminates, also, two of the testator's daughters from any share in their father's estate. A construction which disinherits children who, as far as the record shows, were on good terms with the parent, ought to have a more substantial foundation than a presumption that the testator was careless in his choice or his approval of the words used in framing his bequests. A review of the testimony convinces me that the use in the will of the words "home farm" was meant to describe the eighty acres of land on which the testator first lived. Giving the will that construction saves a complete meaning for the residuary clause. None of the many rules that have been devised to assist in the discovery of a testator's intent should be permitted to interfere with the manifest intention disclosed by the will, 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. Benner v. Mauer, 133 Wis. 325, 113 N.W. 663.
I am authorized to state that Mr. Justice BROWN joins in this dissent.