Widmer v. Godwin

AGEE, J. Viola Voorman Willett died on June 19, 1964, leaving a will executed on January 13, 1956, which provided that upon her death the residue of her estate was to be placed in trust and divided into three equal parts. Each part was to be designated by the name of one of her three children, daughters Ola, Barbara, and Audrey, each of whom was to receive the income from the part bearing her name for so long as she should live.

The termination of the trust as to each of such parts and the disposition thereof were provided for as follows:

“5. Upon the death of each of my said daughters the trust shall terminate as to the part bearing her name and such part shall vest in the following:

“(1) The then surviving issue of such deceased daughter, said issue to take per stirpes; but if she shall leave no such issue, then

“(2) The then surviving issue of my other daughters, the said issue of each other daughter to take one equal share thereof per stirpes.”

Barbara was alive at the time of the execution of the will but predeceased the testatrix without leaving issue.1 The disposition of the “Barbara part” is therefore controlled by paragraph 5(2), rather than by paragraph 5(1).

The court below, without the aid of any extrinsic evidence, except such undisputed background facts as are stated herein, decreed that the Barbara part should be distributed per stirpes to Ola’s three children and Audrey’s one child, thus giving one-sixth thereof to each of Ola’s children and the other one-half thereof to Audrey’s child.

Ola’s children have appealed, contending that the division [356]should be on a per capita basis, thus giving each of them one-fourth of the Barbara part.2

The parties agree that we must, if possible, ascertain the intention of the testatrix as expressed by the language of the will itself and, in doing so, we are not bound by the conclusion of the lower court.

It is not disputed that the opening phrase of paragraph 5(2), namely, “The then surviving issue of my other daughters, ’ ’ merely designates the general class of persons who may be eligible to take the part of a daughter dying without issue.

The dispute here concerns the proper interpretation of the remaining words in paragraph 5(2), namely, “the said issue of each other daughter to take one equal share thereof [i.e., of the Barbara part] per stirpes. ’ ’