Opinion
November 29, 1960 —
January 10, 1961.
APPEAL from a judgment of the county court of Milwaukee county: RUDOLPH J. MUDROCH, Judge. Affirmed.
For the appellant there were briefs by Quarles, Herriott Clemons, attorneys, and Louis Quarles and James T. Guy of counsel, all of Milwaukee, and oral argument by Mr. Guy.
For the respondents First Wisconsin Trust Company and Leroy J. Burlingame, trustees, there was a brief by Burlingame, Gibbs Roper of Milwaukee.
For the respondent Elisabeth Falk Eberbach there was a brief by Shea Hoyt, attorneys, and Ralph M. Hoyt of counsel, all of Milwaukee, and oral argument by Ralph M. Hoyt.
Otto H. Falk, Sr., died testate on May 21, 1940, leaving his widow, Elisabeth Vogel Falk, and two children, Elisabeth Falk Eberbach and Otto H. Falk, Jr. Paragraph V of his will provided "in case my said wife shall survive me" for a gift to trustees, in trust, to pay the entire net income to his wife so long as she should live.
Paragraph VI of the will provided as follows:
"Upon the death of my said wife, the trust herein created shall terminate, and then, or in the event that she shall fail to survive me, then at my death I give, devise and bequeath all the rest, residue and remainder of my estate, of every kind and description and wherever situate, unto my surviving children, share and share alike, the issue of any deceased child to take his parent's share by right of representation."
The final decree in the estate of Otto H. Falk, Sr., was entered on April 8, 1943, was never appealed, or reopened, and was made absolute on June 11, 1946. It recited that Otto H. Falk, Sr., left him surviving his widow, his daughter, and his son, naming each. It decreed, "pursuant to the last will and testament of Otto H. Falk, deceased,"
(1) That the personal property be distributed to a trust company and two individuals, trustees under paragraph V of the will;
(2) That the real estate be assigned and transferred to Mrs. Falk, Sr., the widow; and
(3) "That upon the death of the widow of said deceased, all of said trust estate shall be paid, transferred or delivered to the surviving children of said deceased, Otto H. Falk, share and share alike, the issue of any deceased child to take his parent's share by right of representation."
The son, Otto H. Falk, Jr., died February 23, 1959, without issue, but survived by his widow, Rosalie R. Falk. She was executrix, and sole legatee under his will. Mrs. Falk, Sr., and Mrs. Eberbach survived Otto, Jr., and they, as well as children of Mrs. Eberbach, were living at the time this matter was before the county court. Counsel informed us at the time of oral argument that Mrs. Falk, Sr., died November 24, 1960.
Rosalie R. Falk, claiming that a remainder interest in property left in trust by the will of Otto H. Falk, Sr., vested in Otto, Jr., at the death of his father, and claiming to be the owner of that interest as the widow, executrix and sole legatee of Otto, Jr., petitioned for the construction of the will of Otto H. Falk, Sr., and of the final decree entered in his estate.
On April 26, 1960, the county court made findings of fact and conclusions of law. The court concluded that the final decree directs the manner of distribution of the trust estate upon the termination thereof, and is conclusive; that the court has no authority to construe the will; that the final decree is unambiguous, and directs that upon the death of Mrs. Falk, St., all the trust estate shall be paid and distributed to the children of Otto, Sr., who survive his widow, with the issue of any child who predeceases the widow to take his parent's share by right of representation. It was adjudged that the petition of Mrs. Falk, Jr., be dismissed upon its merits. She appealed.
The question is whether the testator intended that in any event, the identity of his "surviving children" was to be determined at his death, or that, if his wife survived him, their identity was to be determined at her death. In other terms, if the wife survived and the property be held in trust during her life, did that fact postpone vesting of the interest or only enjoyment? Neither the will nor the 1943 decree contained any modifier of "surviving" or "surviving children" which expressly supplied the answer.
In our search for an answer by implication, we must look first at the 1943 decree. Unless we find ambiguity there, we are not to consider the terms of the will.
"The final judgment must be recognized as a judicial determination and expression of the intent of the testator. When the time to appeal has gone by, if the language of the judgment is plain and unambiguous and its meaning clear and definite, no resort to the will or the circumstances of its making may be had. On the other hand, when the language of the judgment is ambiguous and its meaning obscure the sense in which the trial court meant its language to be understood must be ascertained by an examination of evidentiary facts, among which may be the language adopted by the testator and the circumstances surrounding its adoption." Will of Yates (1951), 259 Wis. 263, 272, 48 N.W.2d 601. See Estate of Strange (1958), 3 Wis.2d 104, 87 N.W.2d 859, and Estate of Ferdinand (1959), 7 Wis.2d 577, 97 N.W.2d 414.
In 1943 it was known that the testator's wife had survived him and that the property would be held in trust while she lived. The paragraph of the 1943 decree under consideration reflected that fact, and directed what should be done with the trust fund upon the widow's death. It was known, and recited in the decree, that the children who survived testator were the son Otto and daughter Elisabeth. It was known that there was no issue of any child of testator who had died before he did. If "my surviving children" meant "my children who survive me" the son Otto and daughter Elisabeth could have been named in the decree as those who were to receive the trust fund upon the death of the widow. The use of the descriptive language in the decree instead of their names is at least consistent with the proposition that the identity of the "surviving children" could not be determined until the future event referred to in that paragraph of the decree, namely, the death of the widow.
The paragraph under consideration directed the physical act of delivery of property in the future. Taken literally, such language suggests an expectation that the recipients were to be persons living at the time delivery was to be made.
Of greatest significance, however, is the use in the 1943 decree of the phrase "the issue of any deceased child to take his parent's share by right of representation." Granting the possibility of interpreting "the surviving children of said deceased, Otto H. Falk" as "the children of said deceased, Otto H. Falk, who survived him" and as the equivalent of naming the son Otto and the daughter Elisabeth, such interpretation would render meaningless the phrase referring to the issue of a deceased child. It could not refer to issue of a child who died before testator because there was none. The phrase would have meaning only if the decree contemplated that Otto or Elisabeth might die before the widow and, if that happened, issue could take the parent's share.
We conclude that it is clear from the 1943 decree that each child of testator must survive the widow in order to be a beneficiary. There being no ambiguity in the decree, we do not reach consideration of the language of the will.
The judgment appealed from might properly have construed the 1943 decree as set forth in the conclusions of law of the county court and in this opinion. Judgment dismissing the petition to construe it otherwise achieved the same result.
By the Court. — Judgment affirmed.