Wolf v. Schæffner

Taylor, J. The learned counsel for the appellant insists that the proper construction of the will gives the use of the estate of the deceased to his father, the respondent, during the time his present wife, Amalie Schasfifner, shall live with him; that after her death the estate is bequeathed as follows: $100 each, to' his sister J alia Wolf and his aunt Minna Schaeffner, while the whole of the residue of the estate goes to his sister Stephanie Weinberger, under the second clause of the will, “to my sister Stephanie Weinberger, widow of John Wein-berger, $100 in money, and all other personal property; ” and that the respondent would take nothing under the residuary clause. We heartily join in the regret expressed by the learned counsel for the appellant, that this litigation has lasted so long; and we also fully agree with him that he has labored just as faithfully as though the estate had been larger; but wye cannot fully agree that the responsibility of this protracted litigation is to be chai'ged to the judges of the several courts which have had it under consideration. [59] "We think, considering the cardinal rule which must govern in the construction of wills, viz., the intention of the testator, the construction given to this will by the county court of Milwaukee county, and affirmed by the circuit court of Sheboygan county, is the only reasonable construction that can be given to the same; and that the executor, the appellant, would have been fully justified in permitting such construction to stand unquestioned, without an appeal to the higher courts, leaving such appeal, if any was desired, to the legatee who might have considered her rights prejudiced thereby. Stephanie "Wein-berger was a party to the proceedings in the county court, and bound by them unless she appealed. This was so held on the first ajDpeal in this case, 41 Wis., 614. She was the only person interested in a construction of the will different from that given to it by the county court; and whilst we do not hold that the executor ought not in any case to appeal from a judgment giving a construction to a will, where all the persons interested in getting a different construction from that given by the court having original jurisdiction are parties to the action and have had their day in court, we are clearly of the opinion that it is not his duty to do so unless there be circumstances in the case which call for his interference, as where the parties interested in a different construction are infants, insane, out of the jurisdiction of the court, or perhaps where, on account of poverty, they may be unable to carry on the litigation in their own behalf. It is urged by the learned counsel for the appellant, that the bequest to Stephanie Weinberger is a bequest of all the property owned by the deceased at the time of his death, not being real estate, subject to the payment of the two bequests of $100 each, and the use of the whole estate by the father during the time his wife, Amalie, should live with him. We think this construction ought not to be given to that clause of the will: First, because the language of the clause indicates that such was not the intention of the testator. The language is, “ To [60] my sister Stephanie Weinberger, widow of John Weinberger, $100 in money, and all other personal property.” If the testator had intended to give to his widowed sister all his effects except his real estate, there would have been no propriety in giving her $100 in money first, and then all other personal property; but the natural way of expressing an intention of making her the residuary legatee of all his personal effects would have been to have so stated the fact, without accompanying it with a bequest first of $100 in money. The use of the word ■“ money ” in the clause, followed by the words “ all other personal property,” clearly indicates that in the mind of the testator there was a difference between money and personal property; and that he used the words “ personal property” in a restricted and limited sense, as not including money, or obligations for the payment of money, which, in common parlance, are treated as money. The words “personal property ” in that clause were clearly intended to be limited to goods and chattels of the ordinary kinds. Second. We think this clause was not intended to give to Stephanie all the personal estate of the testator, because there is another residuary clause in the will, giving the residue of his estate to his father, which follows the specific bequests, and this last residuary clause becomes void and of no effect if the bequest to Stephanie carries all the personal estate. This fact is considered a good ground for limiting the significance of the general words in the bequest to Stephanie. Upon this subject Bedfield says: “One of the most common grounds of inferring the limited signification ,f general terms, which might, in their more enlarged sense, include the general residue of the estate, or of the personal property, is, that in some other portion of the instrument a clearly-defined residuary clause is found, which, as no testator would designedly create two residuary legatees, must very clearly show that one or the other was not so intended.” 2 Redf. on Wills, 113, and cases cited. But it is urged against this construction, that the two residuary clauses are not incon [61] sistent, and that the first takes the residue of the personal estate, and the father, under the second, might take the residue of the real estate, if- there were any. We think these clauses ought to be construed with reference to the condition of the testator’s estate at the time he made the will, as well as at the time of his decease. The evidence shows that when this will was executed the testator had no real estate; and, as he must have contemplated that he might die leaving his estate in the same condition that it was when he executed his will, he would not be likely to put in a residuary clause in favor of his father, which, under the construction claimed by the appellant, would be void both when he made it and when he died. Third. The other distribution made of his estate, in case of the death of his father before his own decease, very clearly shows that he did not intend to make his sister Stephanie the chief beneficiary under his will. In that case he makes his sister Stephanie the recipient of the same share of his estate which he gives to his sister Julie and his aunt Minna. This latter distribution of his estate shows that he intended, in all the provisions of his will, to make his two sisters and his aunt Minna equal recipients of his bounty. In the first part of the will, in which he provides for his father by the residuary clause, he gives the sisters and aunt each $100, giving to Stephanie his personal property, other than his money, in addition; the personal property being of very small value, and consisting only of a limited quantity of wearing apparel. And in case the father is not living at his death, then, in his second distribution of his estate, he makes the three equal recipients of his bounty, not giving his sister Stephanie the advantage even of his wearing apparel. We are very clear that reading all the provisions of the will together, with the knowledge that the testator had no estate except money and goods and chattels at the time the will was made, and at the time of his death, the construction given to it by the learned judge of the county court of Milwaukee [62] county was the only reasonable and just construction which could be given to the same, and that the judgment of the circuit court of Sheboygan county affirming that construction must be affirmed. The learned counsel for the appellant objects to the judgment against the appellant for costs, and suggests that under the judgment the costs could be collected out of his own proper estate, and are not to be collected out of the estate which he represents. As he prosecuted this case in his character as executor and not as an individual, under the provisions of section 2932, R. S. ISIS, and as the circuit court failed to direct that the costs should be paid by the appellant personally, for mismanagement or bad faith in such action or defense, the costs must be paid out of the estate which he represents; and the judgment of the circuit court is not in that respect injurious to the rights of the appellant. By the Court.— The judgment of the circuit court is affirmed.