Opinion
September 9, 1941 —
October 7, 1941.
APPEAL from a judgment of the county court of Dane county: GEORGE KRONCKE, Judge. Affirmed.
For the appellant there were briefs by Thomas, Orr Isaksen, attorneys, and Leon E. Isaksen and Joseph G. Werner of counsel, all of Madison, and oral argument by Mr. Isaksen.
For the respondents there was a brief by Fred L. Holmes and F. D. Shuttleworth, both of Madison, attorneys for the First National Bank, and by Schubring, Ryan, Petersen Sutherland of Madison, attorneys for Herman A. Reichel, Elizabeth Reichel, Dorothy Statz Webber, Marjory Pollock, Frederick Pollock, and Joseph Pollock, and oral argument by Mr. William Ryan, Mr. Holmes, and Mr. Shuttleworth.
This action was begun on July 6, 1940 by the executor. Louise O'Malley made her own will, which was executed on December 11, 1937. She died June 6, 1939, and her will was admitted to probate August 23, 1939. At the time of the making of the will the testatrix owned a piece of real estate worth less than $1,000, a small amount of household goods and furniture, and approximately $1,100 in a bank account. She also had in excess of $40,000 in insurance policies, all of which policies were payable to her mother. About a year after she made her will, she obtained about $20,000 cash by the withdrawal of funds from her insurance. She loaned this sum to her husband, the claimant. At the time of her death, her remaining insurance policies were payable to her mother. These policies had a commuted value of approximately $15,000. In addition to insurance she left the promissory notes given by her husband and other small items of personal property but no real estate. By the first clause of her will, she directed the payment of her just debts and the expenses of her last illness and funeral. The second clause is as follows:
"All the rest, residue and remainder of my property and estate, excepting my personal property of which I die seized wherever the same may be situated I will, give, devise and bequeath unto the Central Wisconsin Trust Company," etc.
(The trust was for the benefit of her mother, Elizabeth Reichel, and her father, Herman A. Reichel, if they survived her.)
By the third clause she provided in the event her parents should not survive her or surviving, upon their death, the trustee was to pay in proportionate share equally to the persons named. The beneficiaries joined in the petition of the executor seeking a construction of the will. In addition to the facts already stated, the trial court found:
"(5) Joseph M. O'Malley is a realtor and owned a number of houses which, however, were more or less incumbered; his property was of the value of between twenty-five thousand dollars ($25,000) and forty thousand dollars ($40,000) in 1937; at that time Joseph M. O'Malley had a well-established business.
"(6) Louise O'Malley was the widow of one Eugene A. Fuller, who died in September, 1928; he left over forty thousand dollars ($40,000) of life insurance; there were no children; in 1937 each of the parents of Louise O'Malley were of the age of seventy-two or seventy-three years and were dependent upon testatrix; she had made part of the insurance payable to her aging parents and had undertaken to make some changes in the form of payment.
"(7) Louise O'Malley had of late years, prior to her marriage to Joseph M. O'Malley, resided alone in the Kennedy Manor in Madison, Wisconsin; she had been casually acquainted with Mr. O'Malley for a few years before marriage; she had been employed in well-known business offices in the city of Madison and felt herself competent to draw her will according to her own ideas and understanding.
"(8) Louise O'Malley was married to Joseph M. O'Malley on May 17, 1937, scarcely seven months prior to December 11, 1937, the date of the will; she was interested in the welfare of her parents and had already assigned to them a considerable portion of life insurance in the form of monthly payments, payable to them upon her death.
"(9) On December 10, 1937, the day before the execution of the last will and testament, Louise O'Malley and Joseph M. O'Malley each executed separate documents whereby Louise O'Malley released all her right, title, and interest, including her dower rights, in any property of her husband, and he in turn, by his separate instrument, released any right, title, and interest, including curtesy rights, in any property of his wife's; that said two separate releases form the subject matter of paragraph designated "Fourth" of said last will and testament.
(10) The will was drawn by the testatrix herself, and was signed in the office portion of Kennedy Manor, at which apartment building she then resided."
(11) (Copy of will inserted.)
"(12) Testatrix was much concerned about the investment of her property after death, and provided in her will for the income thereof to go to her parents, and if necessary, part of the principal, and the remainder to her nieces and nephews; there is no provision for her husband, nor is there any residuary clause in said will.
"(13) Louise O'Malley always maintained friendly relations with her father and mother.
"(14) That Louise O'Malley, in using the words `personal property' in her last will and testament, clearly intended said words to be limited to goods and chattels of the ordinary kinds, and were not intended to include bank deposits, notes, proceeds of insurance, or other intangibles."
Judgment was entered accordingly on November 30, 1940, from which Joseph M. O'Malley appeals.
In this court the contention is made that the trial court was in error in holding that it was the intent of the testator —
"that all the rest, residue and remainder of her property and estate, after payments of debts, funeral and administration expenses, excepting goods and chattels of the ordinary kinds, are given, devised and bequeathed to the Central Wisconsin Trust Company, as trustee, to be held in trust and administered as in said second paragraph provided; and that there passed, by said last will and testament, to the Central Wisconsin Trust Company in trust, to be held and administered according to the provisions of said will, all bank deposits standing in the name of Louise O'Malley at the time of her death, all notes payable to her, and all other intangibles."
The question here is, What did the testatrix intend by the use of the term "personal property?" It must be borne in mind she was not skilled in the use of legal terms and drew her will herself unassisted by counsel. There is some suggestion that she copied it from a will in her possession.
It is considered that the contention of the appellant cannot be sustained. We cannot set out in this opinion all of the facts and circumstances connected with the execution of this will. We shall attempt to state the more significant facts from which we conclude that the term "personal property" was not intended by the testatrix to include her promissory notes, securities, or personalty other than personal effects such as household goods, furniture, jewelry, etc.
In the second paragraph of her will, the testatrix made elaborate provision for the investment of the residue of her estate which was designed for the protection of her father and mother. The testatrix had been married to Mr. O'Malley for a comparatively short time. Her surviving husband was in no way associated with the accumulation of her property which was derived mainly from insurance policies left to her by her first husband. It is perfectly plain from the language of the will that the testatrix supposed that the great bulk of her estate would pass to the residue and be administered as a trust fund for the benefit of those who were at least in part dependent upon her.
We doubt very much if the term "personal property," as used among laymen, commonly includes such things as money, promissory notes, bonds, mortgages, and other securities. Our observation has been that the term is most commonly used to refer to tangibles. Whether that is true or not it is clear that the testatrix used it in that sense in writing her will. Construed as the appellant would have it construed, the making of the will would have been almost a useless procedure. She left no child and the estate under our law would have passed to her husband. That she wished to make a substantial provision for her parents is beyond controversy. This fact alone is sufficient to convince us that she used the term "personal property" in a limited sense and as not including notes and other securities. Upon the death of her father and mother, if they survived her, the trustee was to distribute the entire estate "excepting my personal property" to her nieces and nephews. Construed as appellant would have it construed, the amount going to her nieces and nephews compared to her whole estate would have been almost insignificant. In the fourth paragraph of her will she made the following provision:
"I, Louise O'Malley, formerly Louise Fuller have agreed with my husband Joseph M. O'Malley as to a division of our estates in our respective wills whereby we have released each other from a share in the others in the event of our deaths prior to May the 1st, 1938."
This was to cover the time they expected to be consumed on a trip abroad. She did not die until June 9, 1939, so, that this provision has no legal effect but it is a very clear indication of what the testatrix had in her mind. Upon all the facts and circumstances, it is considered that the trial court arrived at the correct construction of this will. In this connection we cite the following authorities: Wolf v. Schaeffner (1881), 51 Wis. 53, 60, 8 N.W. 8; Lowe v. Carter (1856), 55 N.C. 377; Bills v. Putnam (1888), 64 N.H. 554, 15 A. 138, 140; In re La Fetra's Estate (1936), 14 Cal.App.2d 599, 58 P.2d 678; In re Moore's Estate (1913), 241 Pa. 253, 88 A. 432.
In tax statutes and in statutory definitions, the words "personal property" are given the meaning contended for by the appellant in this case. In the construction of a will the intention of the testator governs. Appellant says of the cases cited above that the wills showed on their face that the testatrix used the words "personal property" in other than their ordinary sense. That is true in this case. When in connection with that we take into consideration the circumstances of the testatrix we can arrive at no other conclusion than that arrived at by the trial court.
By the Court. — Judgment appealed from is affirmed.