Opinion
September 8, 1958 —
October 7, 1958.
APPEAL from an order and judgment of the county court of Dane county: GEORGE KRONCKE, JR., Judge. Affirmed.
For the appellant there was a brief and oral argument by William R. Curkeet, Jr., of Madison.
For the respondent there was a brief by Ela, Christianson Ela of Madison, and oral argument by G. Burgess Ela.
Proceeding for the construction of a will. Henry W. Argue died testate on June 9, 1956. An instrument dated and executed on November 30, 1949, was admitted to probate as his last will and testament. The third paragraph of said will is as follows:
"I give and bequeath to my nephew, Harold Cate, all of the notes or other evidence of indebtedness which may be due from him to me and provide that all of such notes or other evidence of indebtedness be destroyed and null and void as chargeable against him."
At the time of the execution of the will the testator held two notes executed by Harold Cate. Each of said notes was dated March 24, 1947, one in the sum of $2,500 and the other in the sum of $954.70. On February 29, 1956, Harold Cate and Mrs. Anna Nagel, his sister, executed and delivered to the testator their joint and several note in the sum of $7,000 with interest at four per centum per annum. The note was due six months after date. The record established that Mrs. Nagel and Mr. Cate received equal benefits from the note.
The executor filed a petition praying for a construction of the above paragraph of the will. On November 8, 1957, the trial court filed a memorandum decision in which it determined that it was the intention of the testator under said paragraph to bequeath to Harold Cate his two notes of $2,500 and $954.70, but that testator did not intend to bequeath to Harold Cate any part of the $7,000 note executed by Mrs. Nagel and Harold Cate. Findings of fact, conclusions of law, and an order and judgment so providing were filed and entered on November 19, 1957. Harold Cate appealed from said order and judgment.
In construing the will under the applicable rules of law the trial court indicated there were three possible constructions so far as the $7,000 note was concerned: (1) The testator intended to release both Cate and Mrs. Nagel from the obligation; (2) the testator intended to release Cate but not Mrs. Nagel; (3) the testator intended to release neither and the entire note is due to the estate.
The inventory in the estate, which included the two notes of Harold Cate dated March 24, 1947, and the $7,000 note, amounted to $14,467.11. No other provision was made in the will for Harold Cate except that contained in paragraph "Third." By another provision of the will Mrs. Nagel was bequeathed one fourth of the residue of the estate. The balance of the estate was bequeathed to other nieces and nephews.
It was conceded upon this appeal that this is a case of first impression in Wisconsin. In fact there seem to be few cases involving the precise issue. The leading case on the subject appears to be Waterman, v. Alden, 143 U.S. 196, 12 Sup. Ct. 435, 36 L.Ed. 123. In commenting on that case the trial court said:
"In that case, the testator forgave debts due from his brothers and sisters. After executing the will, testator loaned money to a partnership in which one brother owned a three-fourths interest and a stranger the remaining one fourth. The United States supreme court held that while the testator intended to forgive debts due from his brother, he did not intend to forgive obligations due from a stranger; nor would it be consistent to forgive the brother's share of the liability and enforce the liability of the stranger to the estate because he directed that the notes should be delivered to the makers; nor would it be consistent to turn the note over to the indebted brother, because the stranger's liability would then inure to him alone and not to the other brothers and sisters. The court concluded that the notes were enforceable against both the brother and his partner."
The trial court also referred to Richardson v. Richardson, a Vermont case reported in 111 Vt. 240, 11 A.2d 227. In 96 C.J.S., Wills, p. 211, sec. 792, it is stated:
"In order to release a debt the provision indicative of such an intent should be clear and unambiguous, since a clause in a will, releasing indebtedness, is strictly construed. A bequest of all personal property has been construed to include debts of the legatee owing to the testator. Ordinarily, the release of a debt will not include joint or partnership debts."
In 4 Page, Wills (lifetime ed.), p. 455, sec. 1567, it is stated:
"A release of debts due from a designated debtor does not, prima facie, include debts for which he is jointly, or jointly and severally, liable."
The trial court applied the rule of strict construction. In its memorandum decision the court said:
"The will bequeaths to Harold Cate the notes due `from him (Cate) to me (testator).' Strictly speaking, the note in question was not due on the date of death, nor was it an obligation owed by Cate alone. It further provides that the note be null and void `as chargeable against him,' and that it be destroyed. If the note were destroyed, it would wipe out Mrs. Nagel's obligation. There is no evidence that testator intended such a result.
"Applied to the question before the court, the clause is ambiguous, and a strict construction militates against release of the joint obligation."
The appellant attempts to distinguish the facts in the Waterman Case from the present case by showing that one of the parties who executed the joint note was a stranger while in this case the makers of the $7,000 note were a niece and a nephew. He argues that if both of the signers in the Waterman Case had been relatives the United States supreme court would have arrived at a different result. He further contends that by giving all of the words of the will their ordinary and usual meanings the note should be destroyed and neither of the makers held liable thereon.
We cannot agree. The testator's plan of distribution is clear from the language of the entire will and to destroy practically half of the assets of the estate by a destruction of the note would distort the testator's evident plan and in effect rewrite his will.
As a second contention the appellant contends that by applying the ordinary and usual meaning to the language of the will the obligation of the appellant could be canceled, leaving Mrs. Nagel obligated to pay one half thereof. He calls attention to sec. 269.53, Stats., which provides that the release of one joint debtor discharges only the portion of the debt which he in equity should pay. He states that at the time of the decision in the Waterman Case there was no such federal law, or again the United States supreme court would have reached a different result.
This section of the statute refers only to the release of a joint debtor. Without going into the distinction between joint debtors and joint and several debtors we will state that there is a distinction, and the application of the joint-debtor statute might lead to a result wholly at variance with the intention of the testator as evidenced by the language in his will.
Finally, the appellant contends that the language is clear that "all notes or other evidence of indebtedness be destroyed." It is argued that this is a clear direction to the executor to take that step, and since the executor has not done so, equity requires that he should desist in any effort to collect the note, particularly from the appellant.
The trial court properly construed the will under the applicable rules of law and its determination must be affirmed.
By the Court. — Order and judgment affirmed.
MARTIN C.J., took no part.