Will of Smith v. Mann

Kerwin, J. Three contentions are made in this case: (1) Counsel for Isaac 0. Mann, trustee under the last will of Samuel G. Smith, deceased, contends that at the time of the death of said Samuel G. Smith, issue having been born to him, said Samuel G-. Smith was the owner in fee of the real estate in question, and upon the admission of his will to probate the fee vested in said trustee for the benefit of Viola Lower, daughter of said Samuel G. Smith, which construction was sustained by the county court. (2) Mary Ann Baker and Sarah Jane Summerton, daughters of Benjamin Smith, deceased, contend that the real estate is either intestate property or passed by the residuary clause of the will of said Benjamin Smith, and that upon the death of Samuel G. Smith the property vested in equal undivided shares in Mary Ann Baker, Sarah Jane Summerton> and Viola Lower, only surviving child of Samuel G. Smith, deceased. (3) Viola Lower, as sole surviving heir at law of her father, Samuel G. Smith, contends that on the death of her father she, by implication, became the owner in fee of the real estate in question. It is clear from the original will that the testator, Benjamin Smith, intended to dispose of his entire estate, and it is likewise clear that .he intended to give the real estate — a farm — and “all the stock, tools, and farming implements” to his son, Samuel G. Smith. The uncertainty arises from the second paragraph of the codicil, set out in the foregoing statement of facts. The codicil was not drawn by a lawyer and is not clear. The circuit court in reversing the county court [211] and in bolding that Samuel G-. Smith took only a life estate, and that the fee of the farm passed by the residuary clause to Mary Ann Balcer, Sarah Jane Sunwnerton> and Viola Lower, daughter of Samuel G-. Smith, jointly and equally, arrived at its conclusion by a system of punctuation and change of words, which we think was not warranted. Samuel G-. Smith having married September 21, 1883, and no issue having been born until May 23, 1886, and the codicil having been made August 4, 1885, the testator, Benjamin Smith, might reasonably have inferred that' no issue would be born to Samuel, and this may have induced the making of the codicil. It is doubtless true that some'cause existed for the codicil, and we think it reasonable to infer, although the language is not plain, that his purpose was to give the real estate and farm implements absolutely to his son, Samuel, in case he had issue, and if not, to simply give him a life estate. This we think is the natural and reasonable construction to be drawn from the original will and codicil in connection with all the facts and circumstances appearing in the case, and, if such were the intention of the testator, then such intention must be followed. In re Donges’s Estate, 103 Wis. 497, 500, 79 N. W. 786; Will of Ehlers, 155 Wis. 46, 143 N. W. 1050; Will of Allis, 163 Wis. 452, 157 N. W. 548, 158 N. W. 330; Will of Waterbury, 163 Wis. 510, 158 N. W. 340. The county judge in his opinion said: • “The codicil first revokes that portion of the third clause of the will which gives Samuel the fee to the real estate, while the second paragraph of the codicil puts back into the will the identical words appearing in the original will, except that he added the name of his wife and has spelled the word ‘seized’ siezed instead of seized. Had he stopped here, the codicil would have been identical with the original will and Samuel would have taken a fee to the land. In the language following he undertakes to qualify and modify the gift to his son, and by adding ‘for his sole use and purpose during the term of his natural life’ he changed his gift from a fee to a life es [212] tate. Had lie gone no further there can he no doubt that his son would have taken but a life estate, but he evidently wished to modify this life estate, for he added a proviso in the words ‘providing there be no issue.’ This last clause, in my judgment, has to do with the words creating the life estate and reasonably means that, should there be issue, then the words ‘fqr his sole use and purpose during the term of his natural life’ would be inoperative. The ‘proviso’ relates to the life estate, for the very nature of the words ‘there be no issue’ are relative to the subject under consideration, to wit, whether to give his son the fee or a lesser estate.” The court is of opinion that the county court properly construed the will and codicil, therefore the judgment of the circuit court must be reversed. By Lite Court.- — The judgment of the court below is reversed, and the cause remanded with directions to enter judgment adjudging the fee of the real estate in question to have been in Samuel Q-. Smith at the time of his death in accordance with the original judgment and decree of said county court, and remit the record to the county court for further proceedings according to law.