In re Swenson's Estate

Collins, J.

The last will and testament of Charles A. Swenson, a resident of this state, was made May 8, 1884. He was a married man, childless, and the ages of his wife and himself were such that it could not be expected that children would be born to them. His father and mother were both dead. He had two sisters, these appellants, and a brother, the latter dying’ in September, 1891. Swenson died November 8, 1891, leaving real and personal property valued at about f50,000. By the terms of the will Swenson gave and devised to his wife, this respondent, an estate for life in and to all of the real property of which he died seised, she to apply the profits and increase therefrom to her own support, and to the support and education of Mary Swenson, who was described as an adopted daughter, (but who had not been adopted,) until the latter became of age. Should a surplus remain of such profits and increase over and above the amount necessary for the purpose above specified, the testator directed that it should be disposed of by his wife as she saw fit. To said Mary Swenson he gave and devised his homestead of two hundred acres, subject to the life estate of his said wife; and to one Mary J. Johnson he gave and devised another tract of land, subject to said life estate.

He gave and devised to his said wife $2,000 in personal property, to be selected by her out of his personalty, at the appraised valuation; and, should she neglect to make such selection, his executors were directed to pay her $2,000 in cash. Then followed the following paragraphs:

“Sixth. I give and bequeath all the rest of my personal property of every kind whatsoever, including notes, bonds, mortgages, and contracts, to my heirs at law, share and share alike.

“Seventh. I will, at the death of my said wife, Dortha Swenson, that all my said real estate not heretofore previously disposed of shall thereupon pass to and be vested in fee in my heirs at law, share and share alike.”

At the time this will was drawn, and for some years afterwards, until October 1, 1889, when the new Probate Code took effect, the. brother and sisters of the testator, three in number, were the presumptive heirs at law under the statutes of this state. Had he died intestate during this period, his real estate, less the share which' by law must go to the widow, would have descended to these persons, next of kin, in equal shares; or, had one deceased prior to this, his or her share would have descended to lawful issue by right of representation. 1878 G. S. ch. 46, § 3, subd. 5. And had any personal property remained after setting apart certain statutory allowances to the widow and paying claims against the estate, it would have been distributed in the same way. Id. ch. 51, § 1, subd. 6. But by the new Code (Laws 1.889, ch. 46) very radical changes were introduced into the laws of this state regulating the descent of real property and the distribution of the personalty of a husband, or wife dying intestate and without children, and these changes, it is claimed, and it was so held in both Probate and District. Courts, must govern and control the construction which is to be placed on the language used by the testator long before the enactment of the Code. To put it in another form, it is contended that we are obliged to construe the residuary clauses in the light of the new statute, and thereby confer the fee to all of the real property and the absolute title to all of the personal property upon the widow, although she was already provided for in the will; thus totally ignoring those who were heirs at law presumptive when the will was made, and who, confessedly, would have succeeded to the property had the statute remained unchanged. By the terms of subdivision 2 of section 64 of the Code the whole of Mr. Swenson’s real property would have descended to his surviving wife had he died intestate subsequent to October 1, 1889, and by the provisions of subdivision 6 of section 70 she would have also succeeded to all of his personal estate. She would have been his heir at law; and, because of this, we are asked to construe the will precisely as if the change had been made in the statute prior to its execution. And to support this position respondents’ counsel cites us cases in which it has been held that under a statute similar to our own the survivor may become the sole heir at law, or may be included among other heirs at law, of a deceased husband or wife; and, further, that although made the object of a special devise or bequest in the will,, a surviving husband or wife may take as an heir under a residuary clause. But these cases are not exactly in point, for in all probability no controversy would have arisen between those parties had the present Code provisions been in force when Mr. Swenson made his will, in 1884. The doubt over the proper construction of the residuary clauses, and as to who should take under them, arises solely because of the statutory changes; and the cases cited did not arise under such circumstances.

The cardinal rule in the construction of wills, to which' all others must bend, is that the intention of the testator expressed in the instrument shall prevail, provided that it be consistent with the rules of law. A court is bound to give that construction which will effectuate the intention, if such intention can be gathered from the terms of the will itself; and the intention is to be gathered from everything contained within the four corners of the instrument. These are but elementary propositions, familiar to all, and in endeavoring to ascertain the intention a court is authorized to put itself in a position occupied by a testator, in order, in view of the circumstances existing when the will was executed, to discover from that standpoint what he intended by it.

Now, if we are to be governed by the dominant rule of interpretation when construing the residuary clauses in this will, bringing to our aid the environments which existed when the testator executed it in 1884, there would seem to be absolutely nothing in the way of a speedy and satisfactory conclusion. Doubt and difficulty are encountered when we abandon the effort to ascertain and carry out the intention by permitting an act of the legislature to intervene, and totally thwart the testator’s plan and purpose, and to deprive his sisters and the sons and daughters of his deceased brother ■of the bounty which he had provided for them; for it is evident that when using the words, “heirs at law, share and share alike,” as he twice did in the will, his mind was fixed upon his brother and sisters then living, and their children, if any. It was undoubtedly his intention to provide for them, first recognizing the claim that his wife had upon him and his estate. He was childless, and these relatives were his heirs presumptive under the law. His wife, should she survive him, he dying intestate, would be entitled to a life estate in their statutory homestead, and to an undivided third in fee of all other real estate. She would also be entitled to certain allowances and her support during,a settlement of the estate out of the personalty, and to one-third of the residue. Of a life estate in the homestead, of a third in fee of other real property, and of these allowances and her support pending settlement she could not be deprived by will without her consent. But the one-third share of his personal estate which would have gone to her under the statute, had he died intestate, was his to dispose of by last will and testament, if he chose so to do. While the value of her share of the estate under the provisions of the will has not been made to appear, it is fairly to be inferred that the testamentary provision made for her is of greater value than was absolutely required under the statute. There is no intimation that she was not abundantly provided for.

Returning now to a consideration oí the testator’s intention as indicated by the surroundings and as expressed in the will, it is obvious that at its execution there were no other persons in existence to whom the words in the residuary clauses would apply. It is-equally as plain that the testator contemplated no change in the statute which would involve the absurdity of an ultimate devise of real property in fee to the same person to whom he had given a prior devise for life, or that his wife, to whom he had granted a life estate in all of his lands, should in any way acquire the reversion as an heir at law. If such is to be the result, it is by means of an entire disregard of the testator’s intention, and the application of unyielding rules of law. To bring this result about, we must hold that the will speaks and points out the heirs as of the day it took effect, and not as of an earlier day; in other words, that the Code was intended to alter, and in this case has altered, the proper meaning and construction of the words contained in a will drawn years-before. The testator intended the reversion to go to three certain persons, designated as clearly as if their names had been written. The statute intervenes, and not a vestige of that intent can be effectuated. The rule that a will speaks as of the date of the decease is not an unyielding one, especially when by a change of statute, the words would have had a different meaning if used in a will executed under the new law. Quick v. Quick, 21 N. J. Eq. 13; In re March, Mander v. Harris, 27 Ch. Div. 166; Jones v. Ogle, 8 Ch. App, 192. Nor is there an inflexible rule for determining the meaning of the words “heirs at law,” or any other words found in a will. From an examination of the authorities it will be found that these particular words have been construed to mean children, adopted children, next of kin, heirs of a particular class or description, heirs-presumptive, heirs apparent, heirs at the date of the will, heirs at the decease of the testator, or heirs at a later date even, the construction seeming to rest and to be predicated upon an ascertainment of the testator’s intention from the words used, from the context of the instrument and from the surrounding circumstances. 2 Jarm. Wills, (6th Amer. Ed.) *905 et seq., and notes; Schouler, Wills, §§ 470, 533, 542, and cases cited; Lord v. Bourne, 63 Me. 368; Rusing v. Rusing, 25 Ind. 64; Reinders v. Koppelman, 94 Mo. 338, (7 S. W. 288;) Howell v. Ackerman, 89 Ky. 22, (11 S. W. 819;) Anthony v. Anthony, 55 Conn. 256, (11 Atl. 45;) Bailey v. Bailey, 25 Mich. 185; In re Sessions' Estate, 70 Mich. 297, (38 N. W. 249.) See, also, Greenwood v. Murray, 28 Minn. 120, (9 N. W. 629.)

(Opinion published 56 N. W. Rep. 1115.)

It is suggested by counsel for respondent that, although the testator may have intended that his brother and sisters should have the reversionary interest in his realty, and should succeed to his personalty upon his decease, less the amount bequeathed to his wife and her statutory allowances, he “toot his chances,” as it is expressed in some of the cases, when neglecting to provide for future legislation affecting the rules of descent and distribution. We are unable to see how an intent to grant the reversion to certain persons, plainly and clearly expressed, would have to be placed beyond legislative control by any provision in the will. The testator would have no reason to suppose that his manifest intent could or would be affected by legislative enactment, and that if, when he executed the will, certain persons were clearly intended and sufficiently designated as the recipients of his bounty, future legislation could interfere with or control that intention and designation. The words “heirs at law',” found in the residuary clauses of the will, must be construed as of the date of its execution, and not with reference to the statute as it existed when the testator died.

The order appealed from is reversed, and the case remanded for proceedings in the court below in accordance with the views herein expressed.