Opinion
January 11, 1955 —
February 8, 1955.
APPEAL from a judgment of the county court of Milwaukee county: M. S. SHERIDAN, Judge. Affirmed.
For the appellant there was a brief by Hanley Wedemeyer, attorneys, and George J. Mangan of counsel, an Reginald I. Kenney, guardian ad litem, all of Milwaukee, and oral argument by Mr. Mangan.
For the respondents there was a brief by Churchill, Duback Churchill for Janet Welch, by Clarence J. Bullock for the First Wisconsin Trust Company, and by Allen Williams, guardian ad litem, all of Milwaukee, and oral argument by Mr. William H. Churchill and Mr. Bullock.
Proceeding for construction of paragraph Sixth of a will.
Louis C. Schneider died testate May 8, 1952. He was survived by a son, Louis J. Schneider, and by his daughter, respondent Janet Welch. By his will, dated November 10, 1950, Mr. Schneider devised to Janet his home, appraised at $17,000, and devised to his son business real estate, appraised at $20,000, bequeathed to the son an automobile, appraised at $750, and forgave any debts owed by the son to the testator at the date of the latter's death. (It appears there were none.)
The sum of $1,000 was bequeathed in trust for each of Louis J. Schneider's four children and $1,000 for each of Janet's three. There was another legacy of $1,000 to a niece and the residue of the distributable estate, estimated to be about $55,000, was disposed of as follows:
"Sixth: All the rest, residue, and remainder of my estate, of every kind and nature, of which I may die seized or possessed, I bequeath unto my trustee hereinafter named in trust for the benefit of my daughter Janet Welch for a period of five years after my death, she to be entitled to receive the income thereof during said period.
"In the event of the death of my said daughter Janet prior to the expiration of said five years said trust shall continue in force until the youngest of her said children shall reach the age of twenty-one years, when the corpus of said trust shall be divided as follows, to wit:
"50% to Kenneth Welch, husband of Janet Welch, in the event he survives her. In the event, however, that he should not survive said Janet Welch, then his share shall be divided equally among the surviving children of Janet Welch.
"The remaining 50% to the children of Janet Welch who survive her, in equal shares."
Respondent First Wisconsin Trust Company was the trustee of said trusts named in the will.
This proceeding was brought to determine what happens to the residuary estate treated by paragraph Sixth of the will if, at the end of five years following the death of Mr. Schneider, his daughter, Janet, is alive. The trial court answered the question as follows:
"It is therefore, ordered, adjudged, and decreed, that the said testator, Louis C. Schneider, intended to, and that he did, dispose of his entire estate by the provisions of his said last will and testament and that he intended thereby that none of his estate should be left to be disposed of as intestate property, and that his said last will and testament should be, and it hereby is, construed to read in the manner following: That by paragraph Sixth of said will said testator intended to, and that he did, thereby establish the residue of his estate in trust for the benefit of his daughter, Janet Welch; that she shall receive the income therefrom for the period of five years after his death; and that if she survives said five-year period and is still living at the expiration thereof she shall then be entitled to receive, and the said trustee shall then turn over and deliver to her, all of the corpus of said residue and the said trust shall thereupon terminate and the estate of the trustee therein shall cease."
Louis J. Schneider has appealed. Janet Welch, her children, and the trustee are respondents.
Appellant contends that the will makes no provision for distribution of the trust estate in the contingency in question and, therefore, in that contingency there is a partial intestacy which requires that distribution of the residue be made to the testator's heirs at law, — himself and Janet, — equally. He points out that the only express provision for Janet in paragraph Sixth is that she shall have the income of the trust fund for five years after the testator's death, if she lives so long, and he asserts that the construction of paragraph Sixth by the trial court results in an enlargement of the bequest to her which is not warranted by anything to be derived from the testator's own language or from any circumstances affecting him when he executed the will.
Estate of Donges (1899), 103 Wis. 497, 499, 79 N.W. 786, so frequently cited that it may be recognized as the leading case on this subject in this state, is very like the instant appeal in its facts. The will to be construed there provided that the wife should have the testator's real estate "to have and to hold the same until the youngest of my children, if any be born me, shall attain the age of twenty-one years. . . . In case there are no children living at the time of my decease, my said wife shall be the sole owner of my real estate." What was to become of the real estate when such youngest surviving child became twenty-one? The Donges will did not say, — just as the Schneider will is silent if Janet outlives her father for five years. Mr. Justice DODGE, speaking for the court in the Donges Case, supra, said (p. 501):
"Among these [rules], two are relevant to the present consideration: First, that in case of doubt such construction will be adopted as to support and give effect to the will, rather than to defeat it; second, that a testator is presumed to have intended a complete distribution of his estate, and a construction tending to that end will be preferred to one which results in intestacy as to any part. Mann v. Hyde, 71 Mich. 278; Given v. Hilton, 95 U.S. 591, 594. In the carrying out of this latter rule courts often find themselves constrained to discover an intention to give, by the will, that which is not in fact given by express words, but which, it is clear from the other bequests and devises, it was the intention of the testator to give, as being so clearly implied from the gifts in fact made and the purpose of the will that silence can signify only an omission to state that which was in the testator's mind and intended. These are called devises or bequests by implication."
The court concluded (p. 503)
"A careful reading of the whole will leads us irresistibly to the conclusion that the testator had in mind the intention that upon the majority of the youngest of his after-born children the real estate, which meanwhile was devised to his widow, should pass to them, and that the failure to so declare was, as in the many cases above referred to, merely an omission to express an intention fully present in the mind of the testator. No other disposition is made, and all the other contingencies, except the existence of such children after attaining the age of twenty-one years, are covered. The leaving of such estate, with the attention of the testator obviously turned to the probable existence of such children, and the presumed inclination to provide for them, when added to the purpose of the will in the light of certain extrinsic evidence as to the situation, leaves no doubt in our minds of this intention of the testator; and it is our duty to declare and effectuate such intention in a case like this, and to supply the ellipsis or omission of the testator, so that there shall be added to the first paragraph of the will, `and then to my said children,' and to hold that by the will itself the realty is devised to respondents upon the majority of the youngest."
Applying the principles stated in Estate of Donges, supra, we find the present will made substantial immediate provision for Louis J. Schneider and contingent provision of indefinite value by the forgiveness of his debts, if he owed any to his father. He is not disinherited nor forgotten. The provisions of paragraph Sixth completely refute the idea that the testator had any intent or desire to include Louis in the distribution of the residue under any circumstances. On the contrary, the intent is clear that he wished the entire benefit of this portion to be Janet's if she survived any part of five years to enjoy his bounty and if she did not then to put her immediate family in her place. In the latter event, when the period of the trust is fulfilled, these beneficiaries take the residue free from trust restrictions. We think it is clearly implied that the testator intended Janet, also, to take the residue free from trust restrictions when the term of her trust, — five years following his death, — was completed. The failure of the will to say this directly can signify only an omission to state that which was in the testator's mind and intended and, as in the Donges Case, supra (p. 504), it is the court's duty "to supply the ellipsis or omission of the testator." The trial court's construction of this portion of paragraph Sixth accomplished this result.
By the Court. — Judgment affirmed.