Opinion
September 9, 1959 —
October 6, 1959.
APPEAL from an order of the county court of Winnebago county: HERBERT J. MUELLER, Judge. Affirmed.
For the appellants there was a brief and oral argument by John A. Moore of Oshkosh.
For the respondent there was a brief by Bouck, Hilton, Dempsey Magnusen, attorneys, and James J. Williamson of counsel, all of Oshkosh, and oral argument by Mr. Williamson.
Edward J. Buser executed the will under consideration on January 23, 1947. He was then owner of certain real estate in Winnebago county, certain shares of stock, and personal effects. Under the terms of the will deceased gave, devised, and bequeathed to his first cousin, Denver Buser, his farm consisting of 85 acres more or less, together with all machinery, livestock, feed, crops, and equipment of any kind on the farm. Denver Buser was also named executor of the last will and testament. Thirty-seven other specific bequests were given in the will.
On March 1, 1948, decedent executed a codicil giving his homestead in Neenah to his housekeeper.
On April 26, 1955, the deceased purchased an additional 49.36 acres adjoining and adjacent to the 85 acres referred to in the will and bequeathed to Denver Buser. The deceased farmed the 85 acres together with the 49.36 acres as one farm until the time of his death on March 29, 1957.
The portions of the will deemed material for consideration on this appeal are as follows:
Paragraph 4: "I give and bequeath my household goods, furniture, furnishings, fixtures, silverware, and effects to Mrs. Mary Wisnac, absolutely to her and to her heirs and assigns forever in appreciation for her years of faithful service as my housekeeper and for the assistance she rendered me during my illness.
Paragraph 5: "I give, devise, and bequeath to my first cousin, Denver Buser of the town of Neenah, Wisconsin, my farm consisting of 85 acres more or less, located in the towns of Neenah and Vinland, Winnebago county, Wisconsin, together with all machinery, livestock, feed, crops, and equipment of any kind thereon at the time of my death, provided however, that my said first cousin, Denver Buser, pay to my cousin, Earl Buser, the sum of $2,000 and to Mrs. Mary Wisnac of Neenah, Wisconsin, the sum of $2,000 within one year of date of my death, which sums shall be a lien against said farm real estate plus interest thereon at five per cent after one year of the date of my death until paid in full and when said payments are made in full, said farm real estate shall go to the said Denver Buser, absolutely to him and to his heirs and assigns forever.
Paragraph 6: "I give and bequeath to my first cousin, Edward Hildebrand, the sum of $1,000.
Paragraph 7: "I give and bequeath to Edward Lucht and Sophie Lucht, his wife or the survivor of either, any shares of stock which I may own at the time of my death in Wisconsin Implement Company, a corporation. This bequest shall not affect any personal indebtedness which Edward Lucht may owe me at the time of my death, which sum shall be paid into my estate.
Paragraph 8: "I give and bequeath to the following named persons the sum of money set opposite their respective names, absolutely to them and to their heirs and assigns forever: [There were 28 specific bequests made to persons named, setting forth a specific amount of money each was entitled to and totaling $21,200].
Paragraph 9: ". . . In the event there are insufficient assets to pay the bequests hereinabove provided for in full, I direct that the same be paid on a prorata basis.
Paragraph 10: "All the rest, residue, and remainder of my estate, whether real, personal, or mixed of whatsoever kind or description and wheresoever situated of which I shall be seized or possessed or to which I shall in any way be entitled at the time of my death, I give, devise, and bequeath to Mrs. Mary Wisnac, absolutely to her and to her heirs and assigns forever."
The executor and legatee, Denver Buser, petitioned for construction of paragraph 5 of the will of the decedent and alleged in said petition that the instrument admitted as the last will and testament and codicil thereto of said decedent is ambiguous and fails clearly to express the intentions of the testator, that it fails to indicate whether or not Denver Buser is to receive the farm located in the towns of Neenah and Vinland, Winnebago county, as it existed at the time of the making of the will, or whether he is to receive the farm as it existed at the time of decedent's death.
The facts heretofore related were all stipulated to between the parties.
A hearing was had and the county court interpreted the last will and testament of Edward J. Buser to mean that the entire parcel, consisting of 135 acres more or less, passes to Denver Buser and ordered that judgment assigning the estate be entered.
Thirteen of the beneficiaries under the will of Edward Buser, all first cousins of the deceased, appealed from the order of the county court of Winnebago county, giving Denver Buser the entire parcel of land.
On March 31, 1958, the following stipulation was entered into by and between the parties:
"1. That Edward J. Buser died on the 29th day of March, 1957.
"2. That the will of said decedent dated the 23d day of January, 1947, and the codicil thereto dated the 1st day of March, 1948, were duly admitted to probate on the 21st day of May, 1957.
"3. That paragraph 5 of said will provides as follows: [Provisions the same as hereinbefore set forth].
"4. That on the 23d day of January, 1947, Edward J. Buser, deceased, owned a farm located in the town of Vinland, Winnebago county, Wisconsin, consisting of approximately 85 acres . . . [real-estate description omitted].
"5. That on the 26th day of April, 1955, Edward J. Buser, deceased, purchased from Roy O. Dobberke and Bonnie Dobberke, his wife, an additional piece of property which is contiguous to and now a part of said farm consisting of approximately 49.36 acres . . . [real-estate description omitted].
"That said deed dated the 26th day of April, 1955, was recorded in Winnebago county registry on the 29th day of April, 1955, in volume 776 on page 475."
The issue here is not whether the testator died intestate as to the 49.36 acres. The parties concede that he did die testate with respect thereto. Therefore, sec. 238.03, Stats., has no application. Thompson, Construction of Wills (1928), pp. 434, 435, sec. 299; 3 Page, Wills (lifetime ed.), p. 36, sec. 960.
The testator in his will disposed of his farm under paragraph 5 in the following manner: "I give, devise, and bequeath to my first cousin, Denver Buser, . . . my farm consisting of 85 acres more or less, . . . together with all machinery, livestock, feed, crops, and equipment of any kind thereon at the time of my death . . ." In the same paragraph he made two bequests, one to Earl Buser in the amount of $2,000 and another to Mary Wisnac, his housekeeper, in the amount of $2,000, and provided that the $4,000 was to be charged as a lien against the farm.
In Estate of Holmes (1940), 233 Wis. 274, 279, 289 N.W. 638, this court said:
"The meaning and effect of a will must be derived from its four corners and any attending circumstances that throw light upon the intent of the testator."
The rules of construction yield to the cardinal rule that the words of a will are to be construed so as to give effect to the intention of the testator, which intention is to be ascertained from the language of the will itself, in the light of the circumstances surrounding the testator at the time of its execution. It is to be construed if possible so as to give effect to every part thereof and a construction is to be preferred which will sustain the provisions of the will rather than to defeat them. Will of Richter (1934), 215 Wis. 108, 254 N.W. 103.
In Will of Schilling (1931), 205 Wis. 259, 278, 237 N.W. 122, this court said:
"A will may be fairly construed to determine its true intent, but it cannot be changed by the court against such intent even though the interested parties are agreeable to such change. Will of Zweifel, 194 Wis. 428, 216 N.W. 840; Will of Rice, 150 Wis. 401, 136 N.W. 956, 137 N.W. 778."
The guiding principle in construing a will is always to ascertain and enforce the intent of the testator as gathered from the particular will to be construed. Otjen v. Frohbach 1912), 148 Wis. 301, 134 N.W. 832.
Webster's New International Dictionary (2d ed.), defines "farm" as follows:
"Orig., a piece of land held under lease for cultivation; hence, any tract of land (whether consisting of one or more parcels) devoted to agricultural purposes, generally under the management of a tenant or the owner; any parcel or group of parcels of land cultivated as a unit."
In order to discover the real intent of the testator it is essential that we consider the language employed by the testator in paragraph 5 of his will, and that it be read in the light and circumstances existing and apparently in his mind at the time of execution of his will.
It is apparent from the record that the testator operated the two parcels of farm real estate as a farm unit during his lifetime, and under the terms of the instant will we conclude that the testator under paragraph 5 of his will manifested an intent to bequeath his entire farm, consisting of 135 acres more or less, to Denver Buser.
By the Court. — Order affirmed.