Martens v. Sachs ( 1940 )

Messmore, J.

Plaintiff brought this action in the district court for Douglas county, to have the court adjudge and decree that the bequest, in the sum of $2,500, made in the last will of Edward Sachs, deceased, is, under the terms of the will, a charge upon an 80-acre tract of land owned by the testator in his lifetime. The trial court found that paragraph 2 of the will was not operative and ordered that the assets of the estate, including the real estate, should pass to the four children, share and share alike, as provided in the residuary clause of the will, paragraph 3, hereinafter set out. From this judgment plaintiff appeals, and Virgil L. Brown, administrator of the estate of Emma Gabernovitz, deceased, appeals in behalf of her estate.

Paragraphs 2 and 3 of the last will and testament of Edward Sachs, made August 10, 1921, read as follows:

“Second, I give, devise and bequeath to my son Emil Sachs the West half of the south east quarter, of Section Thirty-two (32) Township sixteen (16) Range Eleven (11) in Douglas County Nebraska under these conditions that he my son Emil Sachs shall pay to my son Gustave Sachs, the sum of Two thousand five hundred dollars ($2,500.00), He shall pay to my Daughter now Emma Gabernovitz the sum of two thousand five hundred dollars ($2,500.00), He shall pay to my daughter now Lena Martens the sum of Two thousand five hundred dollars ($2,500.00) and with no other charge whatsoever.

“Third, All the rest and residue of my estate, both real, personal and mixed, I give, devise and bequeath to my son Emil Sachs, and my son Gustave Sachs, and to my daughter Emma Gabernovitz, and to my daughter Lena Martens, and to them and their heirs and assigns forever, share and share alike, as tenants in common.”

Edward Sachs departed this life January 5, 1936, and on April 16, 1936, his will was admitted to probate. On October 3, 1936, Emil Sachs filed in the probate proceedings a declination to accept the conditional devise, in which he refused to accept the 80 acres of land under the conditions in said will set out. Lena Augusta Martens, a daughter of the testator, brings this action as plaintiff, to enforce the sale of the 80 acres of land to pay the bequest to her of $2,500, which, she alleges, the testator made a lien against said land.

The hour of will-writing is a solemn one. Into his will the testator puts his most serious reflections, and from it we get a correct insight into his character, because it genuinely reveals his heart and his conscience. It is the testator himself who speaks, although he is gone. “The moving finger writes; and, having writ, moves on; nor all your piety nor wit shall lure it back to cancel half a line, nor all your tears wash out a word of it.” Our temporal possessions are but life-holdings, and the manner in which we part with them at the end of the journey reveals not only our fortunes but our spirits in their least disguised forms, our motives, our principles and our affections.

There is evidence of Emil Sachs that a year or so before his father’s death his father told him that he, Emil, was to have the land and pay the rest of- them, and that, “if I didn’t want it that way, it was equally divided;” that his father had made such a statement “dozens of times.” This is oral evidence that the testator expressed an intention with reference to the will and intended to change it. It is significant that the will was not changed. Emil did not see the will or know where it was. The apparent reason for his declination is the difference in the value of the real estate at the time the will was made and at the time of his father’s death, some 15 years later.

“Parol evidence is inadmissible to determine the intent of a testator as expressed in his will, unless there is a latent ambiguity therein which makes his intent obscure or uncertain.” Lincoln Nat. Bank & Trust Co. v. Grainger, 129 Neb. 451, 262 N. W. 11.

In the instant case, the language of the will, and especially in paragraph 2, is plain, explicit and unambiguous, and, under the circumstances, the testimony heretofore related is inadmissible. The question as to whether or not Emil Sachs rejected or accepted the 80 acres of land has nothing to do with the construction placed upon the words used in the will and chosen by the testator at the time the will was made. Whatever the meaning of the words was, then that meaning still obtains and is not influenced or changed by refusal to act, or any action taken by Emil Sachs some 15 years after the testator drew his will.

In the construction of a will, the court is required to give effect to the true intent of the testator so far as it can be collected from the whole instrument, if such intent is consistent with the rules of law, and, in this connection, circumstances relating to the last.will may be considered. Comp. St. 1929, see. 76-109; Blochowitz v. Blochowitz, 130 Neb. 789, 266 N. W. 644; In re Estate of Hunter, 132 Neb. 454, 272 N. W. 318; Lehman v. Wagner, 136 Neb. 131, 285 N. W. 124.

“Without much regard to canons of construction, the court will place itself in the position of the testator, ascertain his intent from the provisions of the will and enforce it, if lawful. Weller v. Noffsinger, 57 Neb. 455; Krause v. Krause, 113 Neb. 22; Elliott v. Quinn, 109 Neb. 5; Heywood v. Heywood, 92 Neb. 72.” Lincoln Nat. Bank & Trust Co. v. Grainger, supra; Lehman v. Wagner, supra.

The language of the will in the case at bar indicates clearly that the testator did intend the payment of the legacy of $2,500 to each of the two daughters when he devised the land. What he did was to devise the 80-acre tract of land to Emil Sachs, and in the same paragraph and in the same sentence imposed upon the devise the following condition: “Under these conditions that he my son Emil Sachs shall pay * * * to my Daughter now. Emma Gabernovitz the sum of” $2,500, étc. Payment was required under the condition upon which the devise was made. The testator did not require Emil Sachs to pay the $2,500 without giving him something out of which to pay it, to wit, the 80 acres of land.

In Lehman v. Wagner, supra, this court held: “The refusal of the devisee to accept the devise will not affect the charge of the legacy or the charge of the payment of a designated sum to the personal representative of the deceased person. In equity, the land is charged, whether or not the devisee accepts the devise.” See, also, 69 C. J. 1205; Mahaney v. Mahaney, 91 N. J. Eq. 473, 110 Atl. 15.

As was stated in 69 C. J. 1183: “In the absence of anything indicating a contrary intention, land specifically devised will be charged with the payment of legacies where the will expressly directs the devisee to pay the legacies; or where the land is specifically devised ‘subject to/ ‘charged with/ or ‘on condition-that’ the devisee pay the legacies.” To like effect is Schrader v. Schrader, 158 Ia. 85, 139 N. W. 160.

We conclude that the bequest evidenced by paragraph 2 of the will is, under the terms of the will, a charge upon the 80-acre tract of land bequeathed to' Emil Sachs.

The judgment of the district court is reversed, and the cause remanded, with instructions to enter judgment in accordance with this opinion.

Reversed.

Rose, J., dissents.