Fritsch v. Wepking , 259 Wis. 295 ( 1951 )

Gehl, J.

We have recently held in a series of cases that the construction placed upon the provisions of a will by judgment or order is a finality, and that the court may not entertain a later petition for the construction of the will. Estate of Austin, 258 Wis. 578, 46 N. W. (2d) 861; Estate of White, 256 Wis. 467, 41 N. W. (2d) 776; Estate of Larson, 257 Wis. 579, 44 N. W. (2d) 535; and Estate of Lenahan, 258 Wis. 404, 46 N. W. (2d) 352. The question then is: Was the will construed in the judgment of December 12, 1939? If it was, there was no occasion for its construction upon the petition of the two sons filed on August 22, 1950, which, in effect, sought construction.

The court’s authority to construe the will in the judgment assigning the estate is not challenged. In assigning an estate the court not only has the power to construe a will — it cannot order an assignment without such construction. Estate of Garbade, 187 Wis. 105, 203 N. W. 748.

It is true that the decretive portion of the judgment does not in express terms limit the time within which the sons might exercise the options granted by the will. But the decree in its decretive portion does contain a direction for the distribution of all the remaining estate “in accordance with the terms of said will.” It should be given effect according to the court’s intention clearly expressed in the quoted finding, that the respective sons “should have the privilege of purchasing the respective farms . . . during the lifetime of said Thatie Fritsch,” and the judgment must be read as though the court had added to the sentence of the decree the words, “as herein construed.” To so conclude is to take into consideration all of the terms of the decree, as we are required to do in this case. 49 C. J. S., Judgments, p. 862, sec. 436, 30 Am. Jur., Judgments, p. 834, sec. 31.

It is not contended that the court’s expression contained in the pertinent finding, that the sons “should have the privilege of purchasing the respective farms . . . during the lifetime of said Thatie Fritsch,” was perfunctorily made. On the contrary, a deliberate purpose to give construction to an ambiguous provision in the will is clearly indicated. It is more than a “mere recitation of how the court is going to construe the will,” as it was in Will of Corse, 195 Wis. 88, 217 N. W. 726; it is, in fact, a construction which must be carried into the decretive portion of the judgment.

The construction placed upon thé will by the terms of the judgment assigning the estate is not open to further construction; it is not ambiguous. It clearly and definitely limits the time within which the options might be exercised to the period of the life of the widow and implies the exclusion of any additional period. Expressio unius est exclusio alterius.

There is no clear distinction between the options granted by the terms of the will, as construed by the court, and that granted in the ordinary option agreement. In the case of the latter, time is generally regarded as of the essence of the contract. 12 Am. Jur., Contracts, p. 867, sec. 312. The reason for the rule applies here as it does in the case of the ordinary option agreement. It is stated in Waterman v. Banks, 144 U. S. 394, 403, 12 Sup. Ct. 646, 36 L. Ed. 479:

“The court regards it as the case of a condition on the performance of which the party performing it is entitled to a certain benefit; but in order to obtain such benefit he must perform the condition strictly. Therefore if there be a day fixed for its performance, the lapse of that day without its being performed prevents him from claiming the benefit.”

We may not be concerned with the question whether the construction placed upon the will by the judgment of Decern-ber 12, 1939, is the correct one. If we were disposed to disagree with the construction we might not even then disturb it. It is final and, not having been appealed from, must stand. Estate of Bosse, 246 Wis. 252, 16 N. W. (2d) 832.

We conclude, therefore, that there has been a final construction of the will, and that, applying such construction, the time within which the two sons might have exercised the option expired with the death of Thatie Fritsch.

. Appellants attack that part of the order of August 1, 1950, authorizing a sale of the real estate by the surviving trustee upon the ground that it was made without notice. The will named George Fritsch, Jr., and Frank Wepking executors and trustees and authorized them to dispose of testator’s real estate. Since such power was given there was no need of an application to the court for authority therefor, and the failure to give notice of hearing is not fatal.

By the Court. — Judgment affirmed.