Opinion
December 1, 1953 —
December 30, 1953.
APPEAL from an order of the county court of Milwaukee county: M. S. SHERIDAN, Judge. Reversed.
For the appellant there was a brief by Howard A. Tilg and George W. Koch, Jr., both of Milwaukee, and oral argument by Mr. Tilg.
For the respondent there was a brief and oral argument by Alvin M. Strnad of Milwaukee.
Proceeding commenced by the petition of Marie Hipsch for construction of the will of Wenzel Hipsch, Jr., deceased husband of the petitioner. From the order of the county court construing said will, petitioner appeals.
The will in question was prepared by an attorney. It was executed by Wenzel Hipsch, Jr., on April 19, 1939. He died at the age of forty-eight years on April 11, 1952, survived by his widow, his mother, one brother, and two sisters. He had no children. Over $30,000 worth of government bonds, which were held jointly by decedent and his wife, were cashed by Wenzel Hipsch, Jr., prior to his death, and no trace of the money has been found. At the time of his death he possessed only the homestead of the parties and $100 in a bank account.
Paragraphs Second and Third of the will provide:
"Second: I give, devise, and bequeath to my wife, Marie Hipsch, such homestead and dower rights in all of the real estate of which I may die seized as she would have if I had died intestate.
"Third: I give, devise, and bequeath all the rest, residue, and remainder of my property, real and personal, of whatsoever nature and description and wheresoever situated, to my brother, August Hipsch, in trust for the following purposes, to wit: . . ."
Further provisions dealing with the trust are immaterial to the question presented.
Petitioner alleged that the will is ambiguous, particularly paragraph Second, and prayed for construction thereof. In the trial court's opinion the testator's intent was to give to his widow only such interest in his real estate as she could not be deprived of by will.
It is stated in the trial court's opinion:
"It seems clear that testator intended to devise and bequeath to his wife only a part of his estate and the residue, upon termination of the trust, to go to his brother, two sisters, and his wife. We cannot hold that he intended all of his property to go to his widow which would be the result under the statutes (237.02) (318.01) had he not lawfully devised or bequeathed the same."
Sec. 237.02, Stats., provides:
" Homestead how to descend. When the owner of any homestead shall die, not having lawfully devised the same, such homestead shall descend in the manner following:
"(1) If the decedent shall have no lawful issue, to the widow or widower.
"(2) If the decedent shall leave a widow and issue or a widower and issue, to the widow or widower so long as not remarried, and upon marriage or death to the original decedent's heirs according to section 237.01, . . ."
It is unnecessary to discuss the cases of Will of Pfeiffer (1939), 231 Wis. 117, 285 N.W. 432, and Will of Bresnehan (1936), 221 Wis. 51, 265 N.W. 93, referred to in the briefs. The instant case is governed by Estate of Gray (1953), ante, pp. 217, 218, 61 N.W.2d 467, where the language considered was as follows:
"I herewith give, devise, and bequeath unto my wife, Mildred Gray, the share of my estate which she would receive under the law if I died intestate."
Here the language in question is "such homestead and dower rights in all of the real estate of which I may die seized as she would have if I had died intestate."
In the Gray Case, as here, the language quoted is followed by a residuary clause. It was there held that such language was not ambiguous, and that it could not be construed as meaning the wife should receive that share of the estate which she would receive under the law if she elected to take under the law instead of under the will, without transgressing the rule that a court cannot reform a will by changing its language but can only construe the language as written. It was also held that even though the residuary clause of the will establishes that the testator intended there would be a residue, the courts are nevertheless without authority to reform and remake the will and cut down the bequest and devise to the widow so as to leave a residue to pass under the residuary clause.
For a full discussion of all matters involved, see the Gray Case, supra.
By the Court. — Order reversed and cause remanded with directions to enter an order construing the will so as to bequeath and devise to the widow, Marie Hipsch, in fee, the entire real estate of which the testator died seized.