Ohse v. Miller

Winslow, O. J. Various rules have been laid down by the courts as helpful in the construction of uncertain clauses in wills. Rone of them are inflexible, however, and all yield to the cardinal rule that Hie words of a will are to be construed so as to give effect to the intention of the testator, which intention is to be ascertained from the language of the will itself, in the light of the circumstances surrounding the testator at the time of its execution. In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786. The question here is whether the testator intended to make .an absolute gift to his wife of $800, or only to give her such part of the sum as she might need from time to time, and ■only as fast as it was needed; in other words, whether the gift is vested or contingent. The fact that there are no words of bequest, but only a direction to the son to pay, is a circumstance which makes in favor of the idea that the gift is con [477] tingent only; "but this is not at all controlling. The gift will ho held to vest, if such appears to have been the testator’s intention, even though-it he expressed in a mere direction to pay. 30 Am. & Eng. Eney. of Law (2d ed.) 773. The real inquiry is whether the element of time is annexed to. the gift itself as a condition precedent or merely to the payment of it, and we think the circuit court rightly held that the intention was to annex the element of time to the payment only. Potion v. Ludington, 103 Wis. 629, 646, 79 N. W. 1073. The wife was fourteen years younger than the testator and would naturally he expected to survive him some years. ETo other substantial provision was made for her in the will, and it is hardly to he expected that the husband would desire to cut her off with a provision that paltry sums should he doled out to her as it was needed to keep her from absolute pauperism. It is very significant that the first clause contains an absolute direction to pay to her $800, while the element of time is contained in a separate clause regulating only the manner of payment, and, furthermore, that no person was appointed to determine what the character of her needs were to be which would make payments necessary, nor when such payments would be necessary, nor how great they should be at any one time. Thus it would seem that she herself was to determine the character of the needs and the time when payments were necessary to meet them. In re Will of Bouck, 133 Wis. 161, 111 N. W. 573, 113 N. W. 452. It seems to us clear that the testator intended an absolute gift, and the judgment, therefore, must be affirmed. By the Court. — It is so ordered.