Opinion
February 4, 1964 —
March 3, 1964.
APPEAL from orders of the county court of Trempealeau county: A. L. TWESME, Judge. Reversed and remanded.
For the appellant there was a brief by Hale, Skemp, Hanson, Schnurrer Skemp of La Crosse, and oral argument by T. H. Skemp.
For the respondents there was a brief by Herrick Sigl of Eau Claire, and oral argument by Duane Herrick.
This appeal is from two orders relating to the construction of the will of Grace C. Lawrence. The testatrix died on August 31, 1959, and she was at that time a resident of Galesville, Trempealeau county, Wisconsin. She left surviving her a sister, Lizzie Ledbetter. She was also survived by two nieces, Dorothy Lang Hickman and Tess Lang Egan, who were the children of the testatrix's sister, Mary Lang, who had predeceased the testatrix.
Lizzie Ledbetter had two stepdaughters, Orda O. Fox and Mildred Platten, both of whom were living at the death of the testatrix. They were not blood relatives of either Lizzie Ledbetter or the testatrix.
Mrs. Lawrence executed her will on September 1, 1954, and it was admitted to probate on October 6, 1959. The inventory of the estate was filed on November 28, 1961, and it showed that the estate amounted to $54,409.74.
On February 25, 1963, a petition for the construction of the last will and testament of the deceased was filed on behalf of Tess Lang Egan. One of the matters raised by that petition is the issue involved in this appeal: Has the legacy to Mildred Platten lapsed by reason of her death subsequent to the death of Grace Lawrence and prior to the death of Lizzie Ledbetter? The trial court answered this question in the negative.
A supplemental account was filed on February 28, 1963, and there was in the estate at that time a balance of $40,694.89. A hearing was held on the account and on the construction of the will on April 9, 1963. The court rendered a memorandum decision and order on June 7, 1963, such order having the effect of construing the will. The objector to such construction of the will, the appellant here, requested the entry of proposed findings of fact and conclusions of law and for judgment, and, in the alternative, for a new trial. The respondents are the heirs of Mildred Platten. The court denied these motions and affirmed its decision of June 7, 1963, by an order entered on July 15, 1963.
This appeal is from both the order construing the will and the order denying the motions of the objector. The effect of the decision below is that the heirs of Mildred Platten take the $1,500 that would have been paid to her under the will had she survived Lizzie Ledbetter, the life tenant.
The pertinent facts were generally agreed to by the parties in interest. At the time of her death, the testatrix had only three blood relatives, Lizzie Ledbetter and the two nieces, Dorothy Lang Hickman and Tess Lang Egan. The two stepdaughters of Lizzie Ledbetter were also living at the time of the death of the testatrix. After the death of Mrs. Lawrence and before the death of Lizzie Ledbetter, Mildred Platten died. Mildred Platten left surviving her Warren Platten, her husband, and three children, Helen Christianson, Georgia Edde, and Donald Platten.
The instant litigation involves the construction of the following provision of the will of Grace Lawrence:
"First: After the payment of my just debts and funeral expenses, I give all my estate to my sister, Lizzie Ledbetter, during her natural life term; and should there be any left, after her death, I give, bequeath and devise such remainder and rest unto Dorothy Lang Hickman, my niece, and unto Tess Lang Egan, my niece, all thereof, share and share alike, but with this proviso, that they shall pay $1500.00 to Orda O. Fox and $1500.00 to Mildred Platten."
Mrs. Lawrence's will was construed by the trial court to have vested in Mildred Platten, a stepchild of the testatrix's sister, the right to receive the sum of $1,500, even though Mildred Platten did not survive the life beneficiary under the will. In order to reach such result, it was necessary for the trial court to conclude that the provision of the will in favor of Mildred Platten became vested at the death of the testatrix. The trial court further concluded that, "The only thing that remained upon the death of the testatrix was the postponement of the enjoyment of the legacy. Survival was not specifically required as there was no provision in the will requiring survival."
The clause of the will that is in question creates a life interest in Lizzie Ledbetter, a sister of the testatrix, and a remainder to two designated nieces, with the following appendage:
". . . but with this proviso, that they shall pay $1500.00 to Orda O. Fox and $1500.00 to Mildred Platten."
The terms of the will say nothing about lapse or survival, and, accordingly, we are obliged to construe the language of the instrument to determine whether Mildred Platten's heirs can enjoy her interest even though Mildred Platten did not survive the life beneficiary. We are, of course, in search of the intentions of the testatrix. Her desires can only be gleaned from the words she used in her will.
From the text of the clause in question we see that the distribution to Lizzie Ledbetter and the two nieces is by way of a bequest; however, the provision in favor of the two stepchildren is by way of a direction to pay. The distinction between a bequest and a direction to pay would probably not be meaningful to the typical testator. However, when we are obliged to struggle with a circumstance which was in all likelihood not in the immediate thoughts of the testatrix (here, the death of Mildred Platten prior to that of Lizzie Ledbetter), we are compelled to find meaning and distinction in the nuances of language variations which were actually used by the testatrix.
Judge LEARNED HAND addressed himself to the problem of words with this expression: ". . . words are chameleons, which reflect the color of their environment.' Commissioner Internal Revenue v. National Carbide Corp. (2d Cir. 1948), 167 F.2d 304, 306.
A direction to pay is not intrinsically a means of distribution which must automatically foreclose vesting. Nevertheless, when used in the same paragraph as a distribution which is in terms of a bequest, we consider that proper construction may warrant a differentiation of results. In Benner v. Mauer (1907), 133 Wis. 325, 334, 113 N.W. 663, Justice MARSHALL said:
"The rule that, nothing appearing convincingly to the contrary, the presumption is that a bequest takes effect and vests absolutely in point of right at the death of the testator ( Scott v. West, 63 Wis. 529, 24 N.W. 161, 25 N.W. 18), is displaced by the rule that a bequest in the form of a direction to divide between and distribute to specified persons vests in those in esse answering to the description at the appointed time for division and distribution?'
The direction to pay in this case has a quality of futurity which is not so readily found in a direct bequest. Here, the words of the will are fairly to be construed to constitute a direction to pay at a future time, and we interpret the gift as future and not immediate. In other words, the distribution to Mildred Platten is contingent and not vested. Simes and Smith, The Law of Future Interests (2d ed.), p. 43, sec. 593.
We conclude that Mrs. Lawrence, the testatrix, intended that upon the death of her sister, Lizzie Ledbetter (the life beneficiary), the residue was to pass to two named nieces who were obliged, as a condition of their taking, to pay over the sum of $1,500 to Mildred Platten if the latter survived the life beneficiary. Based on the language employed by her, we hold that Mrs. Lawrence did not intend that Mildred Platten's heirs would succeed to the right to such $1,500 unless Mildred Platten survived Lizzie Ledbetter.
The matter must be remanded to the county court with instructions to enter an order consistent with this opinion.
By the Court. — Orders reversed, and cause remanded.