Opinion
November 8, 1951 —
December 4, 1951.
APPEAL from a judgment of the county court of Waukesha county: ALLEN D. YOUNG, Judge. Modified and, as modified, affirmed.
Alvin Juedes of Milwaukee, for the appellants.
The cause was submitted for the respondent on the brief of Lowry Hunter of Waukesha.
This proceeding was presented in part upon the following stipulation made by all of the parties interested:
"It is hereby stipulated and agreed, by and between the undersigned, and each of them, that the following facts are and shall be admitted for the purpose of and on the hearing of the application for construction of the last will and testament and codicil of George Dolph, deceased, admitted to probate in and by the above-named court and for construction of the final decree entered in said estate by said court, to wit:
"1. That said George Dolph, died testate on the 25th day of March, 1918, in the town of Brookfield, Waukesha county, Wisconsin, at the age of about seventy-four years; that said George Dolph, deceased, left him surviving as his only heirs at law the following:
"Harriett Dolph, his widow, "Edith May Dolph Hill, a daughter, "Ivy Dolph Little, a daughter, "Cyrus Dolph, a son, "Nellie Dolph, a daughter, and "Belle Watson, a daughter."2. That Harriett Dolph widow of testator did not remarry and died during the year 1925, in Waukesha county, Wisconsin.
"3. That said Edith May Dolph Hill was married October 18, 1893, at the town of Brookfield, Waukesha county, and died November 6, 1929, leaving her surviving as her only heir at law her daughter, your petitioner, Lola Gail Hendrickson.
"4. That said Ivy Dolph Little was married November 25, 1920, and died August 6, 1931, at Evansville, Wisconsin, and left her surviving as her only heirs at law her son Calvin Little, born July 31, 1924, and died July 16, 1944, and her husband Walter B. Little now living.
"5. That said Cyrus Dolph was married and died March 24, 1940, at Colorado Springs, Colorado, and left him surviving as his only heirs at law his widow Leone Dolph, and adopted son Jerry Dolph.
"5. That said Nellie Dolph never married and died in Waukesha county, Wisconsin, August 27, 1950.
"6. That said Belle Watson is the only surviving child of said testator, George Dolph, deceased.
"7. That neither of the life tenants mentioned in the will of said decedent sold the real estate here in question."
The will, after granting a life estate in the remainder to testator's widow, Harriett, and then to his daughters Nellie and Ivy, contains the following provision:
"After the death or marriage of my wife Harriett Dolph and Nellie and Ivy Dolph I will and direct that my said estate be divided equally between my then surviving children."
Upon proceedings had in the county court of Waukesha county there was entered on January 7, 1919, a judgment, the material portions of which are as follows:
"It is further ordered, adjudged, and decreed that the personal property of said deceased, be and the same is hereby assigned as directed in the will of said deceased, to Harriett Dolph during her life, or until remarriage; and subject to other provisions in said will for her life use and support; and after her death, the sum of $500 to be paid to Belle Watson, May Hill, and Cyrus Dolph, each, within one year; and the balance of said personal estate remaining to be assigned and transferred to the said Nellie Dolph and Ivy Dolph, and to the survivor for life, or until remarriage, subject to any other provisions in said will for life support; and at the date of death or remarriage of said Harriett Dolph, Ivy Dolph, and Nellie Dolph, said estate then remaining to be transferred freed from said life estates in equal shares to Belle Watson, May Hill and Cyrus Dolph; all in accordance with conditions expressed in the will of said deceased.
"It is further ordered, adjudged, and decreed, That the real estate hereinbefore described, and any other real estate, if any there be, whereof said deceased died seized, be and the same is hereby assigned according to the will of said deceased, in the shares and subject to the rights and life estates, and fees given, in the will of said deceased, to which said reference is hereby expressly made.
"It is further ordered, adjudged, and decreed, That said estate be and the same is hereby settled up to this time; that said Harriett Dolph, be released and discharged from all further liability upon said estate excepting for trust estate held by her and her bond as such executrix herein be and stand canceled, upon the filing in this court of proper vouchers showing due payment to the parties entitled thereto of the aforesaid residue of said estate, pursuant to the judgment of distribution herein contained."
In the present proceedings the county court on April 3, 1951, made what is designated as a "supplemental final order assigning residue of estate" in which appears the following:
"It is further ordered, adjudged, and decreed, that the balance of personal property remaining after payment of the above allowances be and the same is hereby assigned to Belle Watson, child and sole surviving legatee under the will of George Dolph, deceased.
"It is further ordered, adjudged, and decreed, that the above-described real estate, and any other real estate, if any there be, whereof the said George Dolph died seized, be and the same is hereby assigned to Belle Watson, child and sole surviving legatee under the will of George Dolph, deceased."
The petitioners, Lola Gail Hendrickson, only heir at law of Edith May Dolph Hill, and Leone Dolph, widow, and Jerry Dolph, son of Cyrus Dolph, his only heirs at law, appeal.
It is the contention of the petitioners that the remainders, subject to the life interests of testator's widow and his two daughters, vested at the testator's death, one third in Edith May Dolph Hill, one third in Cyrus Dolph, and one third in Belle Watson, who is now the only surviving child of the testator.
The judgment of January 7, 1919, in unambiguous terms, assigns the personal property of the deceased to persons specifically named therein. The time for appeal having expired, it is a final adjudication with respect to the personal property and although erroneous, is not subject to either direct or collateral attack. Estate of White, 256 Wis. 467, 41 N.W.2d 776. The court was therefore in error in including in the order of April 3, 1951, the provision that the balance of personal property be assigned to Belle Watson.
The judgment entered on January 7, 1919, assigns the real estate "according to the will of said deceased, in the shares and subject to the rights and life estates, and fees given, in the will of said deceased, to which said reference is hereby expressly made." The provision is, to say the least, ambiguous and requires construction.
At the time these proceedings were commenced the estate was still before the county court. Its jurisdiction still extended to "all matters relating to the settlement of" the estate. Sec. 253.03, Stats. It still had power to construe the terms of the judgment which, as has been pointed out, are ambiguous. Where ambiguity exists the court must resort to such facts and circumstances as are available to remove it and to determine what is meant by its language. For such purpose nothing is more accessible than the terms of the will which express the intent of the testator as to the disposition of his property.
". . . when the language of the judgment is ambiguous and its meaning obscure the sense in which the trial court meant its language to be understood may be ascertained by an examination of evidentiary facts, among which may be the language adopted by the testator and the circumstances surrounding its adoption." Will of Yates, 259 Wis. 263, 272, 48 N.W.2d 601.
The judgment which purports to assign the real estate recites that it assigns it "according to the will." To ascertain the intent of the court, which must be assumed to be the same as that of the testator, resort must be had to the terms of the will.
Subject to three life estates, the property is assigned "to be divided equally between my then surviving children."
Appellants cite a number of authorities from this and other jurisdictions to the rule that the law favors the early vesting of estates and that it requires that their contention be sustained. Such is the rule generally, but it is displaced where the testator's intention to delay the vesting is indicated in the provisions of his will. They cite Will of Colman, 253 Wis. 91, 93, 33 N.W.2d 237, in which was involved the construction of the following provision:
"After the death of my said wife, said trust is to be terminated and I give, devise, and bequeath all my estate, both real and personal, in equal portions to my sister Julia L. Osborne and my brothers Harry L. Colman and Edward L. Colman, for their sole use and benefit. And in case of the death of my said sister or either of my said brothers before the death of my said wife, the share that he or she would have taken shall be divided equally between his or her surviving children, by right of representation."
Three of the children of the sister died after testator but prior to the death of the life tenant. The court held that the children were substituted legatees and took an interest in the estate of the deceased vested at the date of his death. It must be observed, however, that in the Colman Case and in others involving similar testamentary language there is not present a direction that the remainder, after the life tenancies, is to be divided between testator's " then surviving" children. The word "then" is most significant and indicates quite clearly that testator intended that the remainder should go to those of his children surviving at the death of the surviving life tenant.
The word "then" is an adverb of time modifying the following word "surviving." It can be referred to no other language of the will. It can have no other meaning than that the remainder shall go to the children ascertained as of the death of the surviving life tenant. Proctor v. Clark, 154 Mass. 45, 27 N.E. 673. In a note in 49 A.L.R. 187, the author, citing a number of cases in support of his conclusion, says:
". . . where the word `then' is clearly used as an adverb of time, and not as referring to the event, it will have the effect to postpone the ascertainment of the class until the period to which it has reference."
We consider it a correct statement of the rule to be applied here and, accordingly, hold that Belle Watson, as the sole surviving child of the testator, is the sole owner of the real estate of which he died seized.
By the Court. — Judgment modified as indicated in this opinion and, as so modified, affirmed.