Dow v. Hamilton ( 1912 )

IVTAR.fiTTat.t., J.

(dissenting1). I cannot agree with the result reached in this case. As I read the will it is perfectly manifest that subdivision 5 refers only to subdivision 4. The wilting seems too clear to be regarded open for construction. A mere reading thereof is sufficient to give emphasis to this. I requote the instrument:

“First. I desire that all my just debts be paid in full.

“Second. I give and devise to my daughter, Elizabeth Hamilton, the sum of one thousand dollars, and in case she dies before I do, I will that said sum of money shall go to her children in equal shares.

“Third. I will and request that my executor sell all of my real estate and personal property of which I die seized, and out of the proceeds thereof and after all my debts and expenses of administration are paid, that said executor pay the legacies hereinafter named.

“Fourth. My executor shall pay to Leon Dow, of Aubrey, the sum of two hundred dollars; to Jessie Hamilton, of Aubrey, the sum of three hundred dollars; to Harriet H. Dow, of Aubrey, the sum of one thousand dollars; to George fiar-ring, of Wood county, Wisconsin, the sum of three hundred dollars; to Nellie Harring, of Cincinnati, Ohio, the sum of five hundred dollars; to Audley Hamilton, of Aubrey, the sum of one hundred dollars; to Ethel Hamilton, of Aubrey, the sum of two hundred dollars; to lone Hamilton, of Aubrey, the sum of two hundred dollars; to my daughter, Emma Os-trander, the sum of five hundred dollars.

“Fifth. In case the proceeds of my estate are not sufficient to pay all of said legacies in full, the shortage shall be borne by all in proportion to their respective legacies, and if said estate is more than sufficient to pay said legacies, said legatees Khali share the same in proportion to their respective legacies. ...”

Thus it will be seen that the testator bequeathed $1,000, without qualification, to his daughter; evidently supposing it would be satisfied without selling any of his realty or personalty. Next he directed such property to be turned into money and specific sums to be paid to particular persons, not naming the daughter. Again indicating, unmistakably, I venture to say, that he supposed she would be provided for without converting personalty and realty into money. These specific bequests, it will be noted, follow the language “pay the legacies hereinafter named.” Thus emphasizing the idea before and after expressed that “said legacies” were treated as wholly apart from the positive bequest to the daughter. The fourth treated the numerous bequests mentioned as a group, each being of equal grade with the rest and all being denominated as “legacies.” Then follows the fifth subdivision directing what should be done in case of the proceeds of the estate not being sufficient, or more than enough, “to pay all said legacies in full.” Do not the words “said legacies” thus point straight to the words “the legacies” in the preceding subdivision ? It seems so; that the whole will is in perfect harmony therewith; that any other reading violates both the letter and spirit of the instrument and, in effect, judicially makes a will which the testator never thought of making.

WiNslow, C. J., and Vinje, J. We concur in the foregoing dissenting opinion of Mr. Justice Marshall.

On June 19, 1912, the mandate was amended so as to provide that the costs be taxed and paid out of the estate.