Estate of Smith v. Marchant
Estate of Smith v. Marchant
Opinion of the Court
Jon Firehammer appeals from an order denying his motion for reconsideration of the court's construction of his grandfather's will. The will divides the residual estate into seven shares. It also contains a clause directing that if any beneficiary dies within five months of the testator the beneficiary should be treated as if predeceased. One of the beneficiaries, Firehammer's mother, a daughter of the
Leo Arthur Smith is the testator in this case. He died on August 6, 1996. In his will, he split the residue of his estate into seven shares. One share went to each of his two daughters, one to a sister, and one to a niece. The other three were placed in trust for his three grandchildren, to be distributed to them when the youngest reaches age forty. On August 12,1996, one of Smith's daughters died. Smith's will has a provision that if any beneficiary dies within five months after his death, "any interest which would have passed to said beneficiary under other provisions of this Will are to be disposed of according to the plan of distribution which would have been effective ... if such beneficiary had predeceased me." The personal representative thus distributed Smith's deceased daughter's share to her son, Firehammer, pursuant to Wisconsin's anti-lapse statute, § 853.27, STATS. (1995-96).
Firehammer's attorney had not received notice of the hearing on Marchant's motion to prevent distribution.
The construction of a will is a question of law we review without deference to the trial court. See Furmanski v. Furmanski, 196 Wis. 2d 210, 214, 538 N.W.2d 566, 567 (Ct. App. 1995). Our task in construing a will is to determine the testator's intent, and the
Here, Smith's will contains a clause stating that the share of any beneficiary who dies within five months of his death is "to be disposed of according to the plan of distribution which would have been effective under this Will if such beneficiary had predeceased me." There is no ambiguity in this statement. And in Wisconsin, if a relative is a beneficiary under the will, predeceases the testator and has issue who survive the testator, then "the issue . . . are substituted for the deceased relative under the will and take the same interest as the deceased relative would have taken had the deceased relative survived the testator," "[u]nless a contrary intent is indicated by the will." Section 853.27, Stats. (1995-96). A testator is presumed to know the law, so Smith knew about the anti-lapse statute. See Lohr, 174 Wis. 2d at 485, 497 N.W.2d at 736. Nowhere else in Smith's will is there a provision for a predeceased beneficiary. Thus, the statute clearly controls the disposition of the property in this case. The issue of Smith's daughter, Firehammer, takes her share.
Marchant argues that the will expresses two desires on the part of Smith that are frustrated by the above interpretation. "First, he intended to treat the seven residuary beneficiaries equally. Second, when it came to his grandchildren he made certain that they would not fritter away ... his bequests to them." While
By the Court. — Order reversed and cause remanded.
Wisconsin's probate code has been revised. See 1997 Wis. Act 188. Though the revisions were not in effect at the time of this case, the result would be the same under the new anti-lapse statute, § 854.06, Stats.
Marchant argues that Firehammer's failure to appear at the first hearing supports the trial court's decision not to reconsider its order. However, Marchant admits that Firehammer's attorney did not have notice of the hearing. We agree with Firehammer that notice to his attorney was required under § 879.19, Stats. Apparently the trial court also agreed, as it did allow Firehammer to be heard on the matter.
Firehammer's counsel attempted to call the drafter of the will at one of the hearings and the court did not allow it. Firehammer contends this was error. We need not address this issue as we reverse the court's order on the merits. We note, however, that Firehammer's counsel made no offer of proof when the court refused to admit the testimony. Furthermore, the drafter had previously testified that he and Smith had never discussed the provision at issue, so. his testimony would not have shed any light on Smith's intent. Finally, because we conclude that the will is unambiguous, there is no need to look at other evidence to ascertain Smith's intent. See Lohr v. Viney, 174 Wis. 2d 468, 480, 497 N.W.2d 730, 735 (Ct. App. 1993).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.