Wittpen v. Wittpen

WARNE, J., pro tem.

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Barbara L. Wittpen and Prank Schuler, cousins of the decedent, Lena Stadler, have appealed from an order of the probate court settling the first and final account of the administrators with the will annexed of the estate of Lena Stadler, from an order denying the claim of an interest in the estate, and from an order settling an amended supplemental account and report of the administrators and ordering the distribution.

[711]

Decedent died testate on December 6, 1957, leaving a holographic will dated February 27, 1948, wherein certain specific bequests totaling $24,750 were made to a number of relatives, including appellants, friends, charitable organizations and the St. John’s Lutheran Church. Following the specific bequests, the will concluded: “Mrs. Anna Hoerner & Chas Fischer to Take what they want in the house—Linen’s & so forth Anna Hoerner to have gold-dinner set & Chas Fischer Silver (Tea set) Divide the rest between Hoerners & Chas Fischer (money left over when Settled.”

The total estate was appraised at $76,926.84. It consisted of three parcels of real property of the appraised value of $40,500, promissory note and bonds of the value of $10,417.84, cash in the amount of $25,374 and personal property of the value of $635.

According to the parties the only question presented by this appeal is whether or not the trial court erred in holding that the real property was bequeathed by the final sentence of the will. It is appellants’ contention that decedent did not dispose of any of her real property in her will, but only disposed of her money and personal property.

The instrument began: “Last Will & Testament of Lena Stadler.” It concluded: “Divide the rest between Hoerners & Chas Fischer (money left over when Settled.” It is clear that except for the words “money left over when Settled” which are preceded by a parenthesis, an interpretation that the real property would have passed under the will could not be challenged. It is only by the use of the phrase “money left over when Settled” that an ambiguity arises.

A will must be construed according to the intention of the testator as expressed therein, and this intention must be given effect if possible. Each case depends on its own particular facts and precedents are of small value.