Flint v. Wisconsin Trust Co.

Barres, J. In construing a will the vital thing is to ascertain what the testator meant, and his intention must be gathered from the instrument as a whole, read in the light of the circumstances which surrounded him when it was made. — 235 — Allen v. Boomer, 82 Wis. 364, 52 N. W. 426; Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650; In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786; Davies v. Davies, 109 Wis. 129, 85 N. W. 201; Kavanaugh v. Watt, 143 Wis. 90, 126 N. W. 672; Ohse v. Miller, 137 Wis. 474, 119 N. W. 93. But construction of a -will does not begin “until uncertainty of sense is pretty clearly apparent.” Holmes v. Walter, 118 Wis. 409, 413, 95 N. W. 380. “We must have ambiguity before we can enter upon the field of interpretation or construction.” In re Moran’s Will, 118 Wis. 177, 196, 96 N. W. 367. While adjudicated cases may be and sometimes are helpful in aiding in the construction to be placed on wills, it is seldom that the language used and the surrounding circumstances are so much alike in the case of two wills that the decision in reference to one establishes a precedent which controls the decision as to the other. In re Albiston’s Estate, 117 Wis. 272, 94 N. W. 169; Becker v. Chester, 115 Wis. 90, 118, 91 N. W. 87, 650; Otjen v. Frohbach, 148 Wis. 301, 309, 134 N. W. 832. If the word “heirs” used in the fourth paragraph of the will is to be given its technical and correct meaning, then it refers to those persons who would be entitled to inherit Mrs. Chandler’s real estate upon her death under the law of descent. This is conceded. In the case of In re Cowley’s Will, 120 Wis. 263, 266, 97 N. W. 930, 98 N. W. 28, it is said that the words “my lawful heirs” are not ambiguous and that the authorities overwhelmingly “support the rule that reference in a will to heirs or legal heirs of the testator means the persons who at his death ‘are by law entitled to inherit the realty; that such significance can be overcome only by clear and conclusive evidence of a different intent or meaning.” “The word ‘heirs’ in a will primarily is used in its legal or technical sense, and, unless the context shows a contrary intention, must be construed as meaning all those who, in case of intestacy, would be entitled by law to inherit on the death of the testator or ancestor named.” 40 Cyc. 1459. — 236 — The following authorities are to the same effect: 2 Underhill, Wills (1900 ed.) § 607; Page, Wills, § 556; McLean v. Williams, 116 Ga. 257, 42 S. E. 485; Cushman v. Horton, 59 N. Y. 149; Hoover v. Smith, 96 Md. 393, 54 Atl. 102; Jarboe v. Hey, 122 Mo. 341, 353, 26 S. W. 968; Appeal of Dodge, 106 Pa. St. 216, 220, 51 Am. Rep. 519; McCarthy v. Marsh, 5 N. Y. 263, 275; Phillips v. Carpenter, 79 Iowa, 600, 44 N. W. 898; Croom v. Herring, 11 N. C. 393; Barclay v. Cameron, 25 Tex. 232, 242; Brooks v. Evetts, 33 Tex. 732, 742; Lavery v. Egan, 143 Mass. 389, 9 N. E. 747; In re Donahue’s Estate, 36 Cal. 329, 332; Ewing v. Barnes, 156 Ill. 61, 40 N. E. 325, 327; Howell v. Gifford, 64 N. J. Eq., 180, 53 Atl. 1074, 1077; Dukes v. Faulk, 37 S. C. 255, 16 S. E. 122, 127; Gauch v. St. Louis Mut. L. Ins. Co. 88 Ill. 251, 30 Am. Rep. 554; Cook v. First Univ. Church, 23 R. I. 62, 49 Atl. 389, 390; Nye v. Grand Lodge A. O. U. W. 9 Ind. App. 131, 36 N. E. 429, 436; Lincoln v. Perry, 149 Mass. 368, 21 N. E. 671, 4 L. R. A. 215; Olney v. Lovering, 167 Mass. 446, 45 N. E. 766; Merrill v. Preston, 135 Mass. 451, 457; Lawton v. Corlies, 127 N. Y. 100, 27 N. E. 847, 848; Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721, 724; Alexander v. Wallace, 76 Tenn. (8 Lea) 569, 570; Kelley v. Vigas, 112 Ill. 242, 245; Shaw v. Robinson, 42 S. C. 342, 20 S. E. 161. That a case might arise where the word “heirs” would he construed to mean children or heirs apparent may he admitted. But before a court should say that the word should not have its accurate and legal meaning, it should clearly appear that the testator did not use the word advisedly afid that he intended to say something different from what he did say. Appellants’ contentions are that the word “heirs” is used in a popular sense to denote “heirs apparent,” as well as in a technical sense; that it is not accurate to speak of heirs of a living person if it is the intention to use the word in a technical sense, while it is if the word is used as meaning heirs — 237 — apparent or children; that in articles 5 and 6 of the will the testator nsed the word “heirs” in its technical sense and in articles 7 and 8 he nsed the word in its popular sense, showing that he nsed the word in its popular as well as in its technical sense; that the language of the fourth article of the will imports an immediate and absolute gift of the remainder to the heirs of a person recognized in and by the will as then living; that conditions were such when the will was made that the testator evidently intended to make a devise of a life estate to Mrs. Chandler 'and vest the remainder in her children; and, finally, that the law favors vested rather than contingent remainders, and, where there is reasonable doubt as to which a testator intended to create, the doubt should be resolved in favor of the vested remainder. Eone of these reasons, considered singly, is very persuasive, and all of them combined are not very convincing. A large number of cases are cited by appellants wherein the word “heirs,” when used in the deed or will under consideration, was held to mean children. In some of those cases the court held that, taking the instrument as a whole and construing it in the light of the circumstances which surrounded the party who made it, it was manifest that the word heirs was intended to mean children. In many of them such a construction was necessary in order to hold the grant .or devise valid. In some of the cases relied on there was perhaps fair room for doubt as to what the intention of the testator or grantor was. Starting with the propositions established in this court, that the meaning of the word “heirs” when used in a will is not ambiguous, and that the evidence must be clear and conclusive to show that the testator made an inaccurate use of the word, there is little to indicate that the trial court did not correctly construe the fourth article of the will. The obvious impression which a reading of the will conveys to the mind is that the testator intended that Mrs. Chandler should have a life estate in the property, ‘and that after she — 238 — was through with it it should go to those who would inherit any real estate she might own if she died intestate. It is not accurate to speak of a designated person as the heir of another person who is living, although it is customary enough to do so. It is accurate to speak of the heirs of a living person when reference is intended to be made to those unknown persons entitled to inherit his real property at his death under the laws of descent. Neither are we impressed with the contention that the word heirs is used in its popular rather than in its technical sense in articles 1 and 8 of the will, or that it purports to make an immediate gift of the remainder. The rule of law which favors vested estates rather than contingent ones at the present time is practically a rule of construction that may have controlling weight in a close or doubtful case, but cannot be invoked to defeat the intent of the testator where that intent is reasonably clear. The fact of the matter is, the will appears to be a pretty plain and easily understood document, about the intent and meaning of which there is not very much doubt. Perhaps able counsel, in view of what has transpired, could use more apt and less ambiguous language than that used, but the draughtsman without the benefit of hindsight managed to draw a document which is far from being cryptic in character. . By giving the word heirs its technical legal meaning, we have a will that makes an entirely sane and reasonable disposition of the property. The testator wanted to specially provide for his sister, Mrs. Chandler, probably because her husband was not as well off as were the husbands of his other sisters. He took care of her by giving her a life estate in the property and by providing that a building should be erected thereon from which she should draw the rents. If she left children surviving her, they would of course take the fee; if not, then the estate was to go to Mrs. Chandler’s heirs, who, as it turned out, would also be the lawful heirs of the testator had he died without leaving a widow or issue at the time — 239 — Mrs. Chandler died. It is true that tinder the construction-which we adopt a contingency might have arisen whereby the property would have gone to Mrs. Chandler’s husband, and it may he said that the testator desired to have his property go to his own blood relations. This contingency, however, would be just as likely to happen under the construction contended for by appellants. Although the case is important, we deem it unnecessary to prolong the discussion. The case involves practically a single question. If the testator used the word heirs when he meant children, the judgment should be reversed, otherwise it should stand. The plain import of the language used is that the testator did not mean children. If its ordinary and usual sense is given to the language used, the circuit court reached a correct conclusion. To our minds the case is quite barren of circumstances which would logically lead to the conclusion that the testator meant children when he used the word heirs in the fourth article of his will. By the Qourt. — Judgment affirmed.