Opinion
March 6, 1958 —
April 8, 1958.
APPEAL from an order of the county court of Kenosha county: HAROLD M. BODE, Judge. Affirmed.
For the appellant there was a brief by Vaudreuil Vaudreuil of Kenosha, and oral argument by Leo E. Vaudreuil.
For the respondent there was a brief and oral argument by David L. Phillips, attorney, and Charles J. Richards of counsel, both of Kenosha.
In proceedings for the probate of the will of Robert Frost, deceased, Elsie Dahnert, a daughter of the decedent, petitioned the court for construction of a portion of the will. From an order construing the same, the petitioner appeals.
Robert Frost and Madeline Frost, his widow, had been married in December of 1923. Each had previously been married and each had children by the previous marriages. They had no children together.
In 1937 Robert Frost purchased a lot in the city of Kenosha on which there was a house designated as 1904 Sixty-Second street, an east-west street. The lot was approximately 50 feet wide, fronting Sixty-Second street on the south, and 139 feet deep, bounded on the west by a north-south alley. The house located on the property at the time decedent purchased it was on the front or south end of the lot facing south on Sixty-Second street. In 1938 or 1939 Frost moved the house to the rear of the lot fronting west on the alley, and did considerable remodeling, including the installation of separate gas and water pipes. The house retained the 1904 number designation and was always rented as income property; it was never lived in by Frost and his wife.
In 1938 or 1939 when the house was moved Frost completely inclosed the front portion of the lot (80 to 85 feet deep) with a fence. The first year thereafter he had a garden there and in subsequent years he permitted neighbors and friends to use it as a garden. About 1940 he put a "For Sale" sign on the rear east-west fence, facing the street.
Thereafter, on February 23, 1954, Robert Frost made his last will and testament, article Second of which provides:
"I give, devise and bequeath to my daughter, Elsie Dahnert, my real estate commonly known as 1904 Sixty-Second street, Kenosha, Wisconsin."
He made several other specific bequests and willed the residue to his wife, Madeline Frost.
Henry McQuestion, a real-estate dealer, testified that from the spring of 1954 to the spring of 1955 he had a verbal option from Frost for the purchase of the vacant portion of the lot; this did not include the rear portion on which the old house was located. The witness further testified that when the option was given he and Frost stepped off footage at the back end which allowed sufficient space for a driveway on the south side of the old house. Frost terminated the option early in the spring of 1955, advising McQuestion that he had decided to build a house there for himself and his wife.
In July of 1955, Frost started the building of a new house on the south portion of the lot. Reinhold Lemke, the contractor, testified that Frost established a line 85 feet north of the sidewalk and put a stake in the ground at that point.
When the new house was finished it was numbered 1902 Sixty-Second street. Decedent and his wife moved into it in October of 1955. He died September 23, 1956, survived by his widow, Madeline Frost, and two daughters, Elsie Dahnert, the petitioner, and Frieda Kaddatz. Testator had told several people that the new house was for himself and his wife.
Petitioner requested the court to construe article Second of the will, alleging that there was a question whether she was to obtain thereunder title to the entire lot. The trial court determined that by that provision the testator intended to bequeath to Elsie Dahnert the dwelling house known as 1904 Sixty-Second street and the real estate surrounding it, not including the south 85 feet.
We agree with the lower court that there is a latent ambiguity in article Second of the will. At the time decedent purchased the parcel in 1937 the entire lot was "commonly known as 1904 Sixty-Second street." However, decedent's treatment of the property between that time and February 23, 1954, when he made his will, gives rise to a latent ambiguity in article Second. Shortly after he purchased it he moved the old house to the rear, installed its own sewer and water connections, erected a fence enclosing the front 85 feet of the lot, and placed a "For Sale" sign on the fence.
Appellant argues that the mere fencing of a rear yard would not indicate that the rear was no longer part of the premises designated by house number, and that the fencing of a front end would make no difference. However, one does not ordinarily move a house from the front to the rear of a lot in order to fence a yard or garden space in the front. And the placing of the sale sign on the fence raises the question whether Frost considered the rear portion of the lot with the house numbered 1904 separate from the front 85 feet or whether he was offering the entire lot for sale. From these extraneous circumstances, which existed at the time he made his will, the ambiguity of article Second appears, and the trial court was warranted in admitting extrinsic evidence with respect thereto.
As observed in annotations, 94 A.L.R. 52, some extrinsic evidence is necessary in every case to identify the persons and property referred to in a will. When such evidence shows that language which is plain on its face becomes uncertain or ambiguous when viewed in the light of surrounding facts and circumstances, extrinsic evidence becomes admissible to resolve the ambiguity thus raised. Will of Boeck (1915), 160 Wis. 577, 152 N.W. 155; Morgan v. Burrows (1878), 45 Wis. 211. See also 57 Am. Jur., Wills, p. 676, secs. 1041, 1042.
Evidence as to Frost's handling of the property prior to making his will warrants the conclusion that he devised to his daughter the rear portion with the house numbered 1904, exclusive of the front 85 feet. His declarations after February 23, 1954, while perhaps not evidence as to his intention when he made the will, are consistent with that conclusion, whereas petitioner offered no evidence that he ever had any other intention.
The record shows that the testator had been married to Madeline Frost for over thirty years when he made his will. At the time the will was drawn in 1954 the old house had been moved to the rear of the lot; it had kept its number, 1904, and was so referred to; the portion of the lot on which it previously stood had been fenced in. In 1955 the new home was built; it was numbered 1902 and so referred to. All of these circumstances leave no other consistent conclusion for the court to reach but that article Second gives to the daughter the old house and the land on which it stands, exclusive of the south 85 feet.
By the Court. — Order affirmed.