Opinion
No. 2818
September 23, 1958
Appeal from the District Court of Laramie County, Wyoming, the Honorable Allen A. Pearson, Judge.
Affirmed.
For the objectors and appellants, the cause was submitted upon the briefs of Lathrop, Lathrop Tilker of Cheyenne, Wyoming, and oral argument by Carleton A. Lathrop.
For the heirs at law and respondents, the cause was submitted upon the brief and also oral argument of M.S. Reynolds of Cheyenne, Wyoming.
For the executor and respondent, the cause was submitted upon the brief of Loomis, Lazear Wilson of Cheyenne, Wyoming.
Heard before Blume, C.J., and Harnsberger and Parker, JJ.
The cardinal rule in the construction of Wills is that the intention of the testator, determined from an examination of the whole Will, attributing due weight to all its language, should be given effect unless contrary to public policy or some rule of law. If the intention of the testator is reasonably clear, it will be carried out regardless of any general rules that have been formulated for the construction of wills. The task of the court is to ascertain testamentary intent and give it effect, but not to create an intent where none appears, nor to permit some of the words of a will to contravene an intent fairly to be deduced from a study of the will as a whole and of the circumstances in the light of which it was executed. Crowell v. Chapman, 1926, 257 Mass. 492, 154 N.E. 397. The Court may not substitute its notions for those of the testatrix as to the proper disposition of her property and the objects of her bounty. New York City Mission Society v. Board of Pensions (1940), 19 N.Y.S.2d 200. The rules of construction applied to wills in numerous cases recognize that each will must be construed by its own terms, and that where there is any ambiguity in the language the court must, as far as possible put itself in the position of the testator, taking into consideration all the circumstances under which the will was executed, the condition of the testator's family and his estate, and from all the facts and circumstances find what his intention was. Hawkins v. Hansen, 92 Kan. 73, 139 P. 1022, L.R.A. 1915A, 90; Beall v. Hardie, 177 Kan. 353, 279 P.2d 276, 277; Brown v. Brown, 101 Kan. 335, 166 P. 499; In re Graham's Estate (Cal.) 310 P.2d 442; In re Lee's Estate (Wash.) 299 P.2d 1066. The authorities all hold that the very fact that a testator makes a will raises a presumption that he intended to dispose of all of his property, and that a construction leading to partial intestacy is not favored by the courts. Presumptions against intestacy are especially applicable in construing residuary clauses, since generally they are employed for the purpose of making complete disposition of the testator's property. Constructions leading to intestacy either in whole or in part are not generally favored but will be rejected when the language is reasonably effective to dispose of the entire estate; and liberal interpretation is employed to that end. Re Estate of Clara Rood Akeley (1950), 215 P.2d 921, 17 A.L.R. 2d 647. In the absence of controlling language in the will to the contrary, it will be presumed that a testator intended to dispose of all of his property. If the will indicates an intention to dispose of the entire estate of the testator, an interpretation that will prevent a partial intestacy is to be preferred to one that would require such partial intestacy. In re Ottoveggio's Estate (1944) 148 P.2d 878. But a favorable construction of the document based solely upon its contents may also be derived. It is fundamental that a will must be construed as intended by its author. Neither a lack of rhetorical flourish nor the failure to observe grammatical rules will govern its interpretation. In re Estate of Lewis, 91 Cal.App.2d 344, 345, 204 P.2d 898. The fact that the testatrix made specific gifts and devised all the remains of her possessions indicates an intention to dispose of all her property. Also the very fact of a will raises the presumption that she intended to make a complete disposition of her possessions. Inasmuch as the document contained a residuary clause, a court must so construe it as to avoid partial intestacy. Partial intestacy is not favored. In re Boyd's Estate, Cal., 307 P.2d 754 (1957). The reading of the entire Will of the decedent in this case shows that her primary interest was the First Christian Church of Cheyenne, Wyoming. The testimony of witnesses attest to the fact that her life and friends were intertwined with that church and certain of its members. The Will itself shows Mrs. Lendecke wanted the church to have twelve times the interest given each of the other twenty-five beneficiaries named in the Second paragraph of the Will. The construction placed upon the Will by the lower Court would defeat this overriding wish and intent of the testatrix, and give her property to persons, some of whom she expressly and deliberately intended to exclude. Gifts to charity are highly favored. Bequests for such purpose will be liberally construed in order to effectuate the intent of the testator. In re Duncan's Estate (Cal.) 302 P.2d 892.
POINTS OF COUNSEL FOR APPELLEES.The entire controversy and objections as outlined by the appellants in their statement appears to be over the second paragraph of the Will, relative to the following wording, "Second, I give, devise and bequeath all of my estate, real, personal and mixed, wheresoever located, and of whatsoever consisting to the following:" Then, following in the same paragraph we find some twenty-seven legacies to be given in cash; also, other directives in the same paragraph. It was clearly the intent as to what the Testatrix meant by what she said, that the entire estate was to be used in payment of the legacies therein set forth. She was making sure that the legacies were first paid. There is no word at any time against any brother or sister in the case, or against any heir. There are ample funds to pay all legacies mentioned in the estate. The remainder should go to the heirs. Where a will contains no effective residuary gift, a lapsed or void legacy or devise will go to the heirs or next of kin of testator, as in cases of intestacy, unless other clauses in the will cover the lapse, etc.
POINTS OF COUNSEL FOR EXECUTOR AND APPELLEE.The general principle is well established that in the absence of a residuary clause, the subject matter of lapsed or ineffectual legacies or devises passes as intestate property to those who would be entitled to take under the statutes of descent and distribution, in the absence of any indication that the testator intended otherwise. A contrary testatorial intention is usually expressed by a residuary clause, by a provision expressly substituting a new legatee or devisee upon the death of the original donee, or by a direction in the will as to the disposition of the subject matter of the bequest in the event the original disposition becomes ineffective. 57 A.J. 970.
OPINION
Mary F. Lendecke, a resident of Laramie County, Wyoming, died there May 10, 1956, leaving a will which, after providing for the payment of debts and expenses, stated in the second paragraph thereof:
"I give devise and bequeath, all of my estate, real, personal and mixed, wheresoever located, and of whatsoever consisting, to the following:
"First Christian Church, ______________________________ Cheyenne, Wyoming ___________________________________ $12,000.00 "Wyoming Children's Home Society, _____________________ Cheyenne, Wyoming ___________________________________ $ 1,000.00
* * * * *
"Minnie M. Parker, Cheyenne, Wyoming __________________ $ 1,000.00 "Jennie B. Hubbard, Cheyenne, Wyoming _________________ $ 1,000.00
* * * * *
"Hubert Hubbard, Cheyenne, Wyoming ____________________ $ 1.00 "Betty Jane Hubbard, __________________________________ Cheyenne, Wyoming ___________________________________ $ 1.00"
(Twenty-two other beneficiaries — some institutions, some individuals — were listed as entitled to receive $1,000 each.) The remainder of the paragraph related to money owing testatrix, disposition of personal belongings, and funeral arrangements and services. The third paragraph appointed the Stock Growers National Bank of Cheyenne as executor. There was no residuary disposition.
The inventory and appraisement showed a total value of $125,853.68; the final accounting disclosed total assets of $137,608. The executor's final report and petition for distribution stated that the will did not provide for the disposition of the residue and remainder of the estate of the deceased, after payment of debts, expenses, and the amounts specified in the will, and requested that it be set over to the heirs, share and share alike, under the laws of descent and distribution of the State of Wyoming; that is, Minnie M. Parker, sister, one-fourth; Jennie B. Hubbard, sister, one-fourth; Albert E. Hubbard, brother, one-fourth; and Hubert Hubbard and Betty Jane Nickerson, children of deceased's brother, Carl F. Hubbard, one-eighth each.
Fourteen of the beneficiaries named in the will objected to the executor's report and petition and in effect urged that under the terms of the will all of the residue descended to the beneficiaries therein named. Following a hearing on the executor's petition and the objections thereto, the trial court approved the executor's final report and petition for distribution, holding that the testatrix had provided in her will for the payment of the certain bequests listed therein and that the rest, residue, and remainder of said estate after the payment of said bequests, claims, taxes, costs of administration, and fees should be set over and distributed to the heirs at law, who were found to be as hereinabove noted. From this order the present appeal has been prosecuted.
The question before us is, What did the testatrix mean in the second paragraph of her will? To state the problem more specifically, Did she intend the beneficiaries named in the will to receive only the amounts which she specified, or did she by using "all" and related words intend that the named beneficiaries receive her entire estate — notwithstanding the recitation of an amount of money following the name of each beneficiary? A preliminary reading of the will's second paragraph discloses that the statements therein are in serious conflict. If we are to say that all of the estate passed to the beneficiaries named therein, then we must as a corollary hold that the designation of the amounts listed constituted no limitations, but were in fact meaningless. On the other hand if we say that the amounts listed are controlling, we thereby render nugatory the testatrix's use of the word "all." The respective parties to the litigation have in their arguments solved the matter by electing to emphasize words which suit their purposes and by ignoring words which do not accord with the desired interpretation. We do not think that the problem can be solved so easily. Neither do we agree that the issues in this case can be determined solely by applying any one of the numerous general principles of law which have been called to our attention. For instance, one rule which at first would seem to have a bearing on the case is:
"* * * where the will does not dispose of all of the testator's property, that portion of his estate which is undisposed of goes as intestate property to the heirs * * *." 96 C.J.S. Wills § 1225, p. 1070.
However, this principle is of no assistance until the important question in the case has been answered: Did the testatrix effectively dispose of that part of her estate which was over and above the amounts listed as legacies? We cannot assume an answer to this question but must look to the applicable law and pertinent evidence for determination of the point.
The intention of the testatrix could, perhaps, have been ascertained had there been extrinsic evidence of her actions, statements, and the like; but unfortunately the record shows little of this except that both she and several of the beneficiaries were members of the First Christian Church of Cheyenne, Wyoming, in which she took an active interest. This information is of slight assistance. The case is one of first impression to be determined in accordance with established rules of interpretation. As we have pointed out, the provisions of the Lendecke will giving all of the estate to named beneficiaries is wholly inconsistent with the listing by her of the amounts which each beneficiary was to receive. We must, therefore, ascertain whether one of these two provisions is superior to the other and prevails over that which is subordinate or whether these two contradictory provisions are of equal force so as to be irreconcilable, thereby causing the failure of all the bequests in the will.
In re Jones' Estate, 72 Nev. 121, 296 P.2d 295; Reid v. Voorhees, 216 Ill. 236, 74 N.E. 804; Rugg v. Smith, 40 Ohio App. 101, 177 N.E. 784; 1 Jarman on Wills, 7th ed., p. 536 ff.
It seems to us evident that the testatrix's use of the word "all" constitutes a general provision. This has been so held in Jones v. Lewis, 70 Ohio App. 17, 44 N.E.2d 735; In re Conner's Estate, 302 Pa. 534, 153 A. 730; In re Sarvers's Estate, 324 Pa. 349, 188 A. 141; wherein the testator in each instance purported to give "all" of certain property and in the same instrument made specific dispositions which were inconsistent. In each of these cases, the court made its determination in accordance with the general rule found at 95 C.J.S. Wills § 621, pp. 868, 873:
"* * * Where there is an inconsistency between a general and a specific provision, the latter will prevail. Those parts which are expressed with technical precision may be regarded as declaring the testator's intention with greater certainty than those which are less formal. By analogy to the rule of interpretation applied in the matter of description of land, where distance and direction must yield to monuments, as between an inaccuracy in stating the details of the method of reaching a result and in the express statement of the result itself, the former is the more probable.
* * * * *
"Where there is an inconsistency between a general and a specific provision, the latter will prevail * * * regardless of the order in which it stands in the will, but especially where the specific follows the general."
If testatrix Lendecke intended all of her estate to go to the persons named by her as entitled to receive specific amounts, she gave no clear indication of it. She stated no formula or proportionate arrangement by which any overplus (after payment of stated legacies and expenses) should be divided between the persons whom she named. Any interpretation of her will so as to arbitrarily apportion such overplus among the persons named as beneficiaries would be an attempt to rewrite the will, substituting the ideas of the court for those of the testatrix. Jurists have often declined to supply words for a testatrix, especially where the will is clear and unambiguous. Slover v. Harris, Wyo., 314 P.2d 953.
The will in the present controversy contains inconsistent statements and we think is ambiguous. However, the ambiguity is not so serious that the contradictory portions of the testamentary disposition are irreconcilable. Such provisions if of equal weight would nullify each other and thereby cause the failure of all bequests in the will, but under recognized principles of interpretation by which the specific prevails over the general, testatrix Lendecke's delineation of the amounts to be received by each of the named persons and agencies makes it reasonably clear that she intended them to receive that much — no less and no more. The trial court's disposition of the case was in accord with the law as we view it.
Affirmed.