COURT OF APPEALS DECISION DATED AND FILED December 27, 2007 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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In re the estate of George E. Skille: Carrie Gustafson, Appellant, v. Boyd Skille and Jean Skille, Respondents. |
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APPEAL
from an order of the circuit court for
Before
¶1 PER CURIAM. Carrie Gustafson,[1] pro se, appeals a will construction. The issue is whether the decedent intended Boyd and Jean Skille each receive a separate share of his estate, or rather receive one share as husband and wife. We affirm the order of the circuit court concluding the decedent intended Boyd and Jean to receive one share each.
¶2 George Skille died testate on November 23, 2003,[2] and his one-page last will and testament provided at paragraph 2 as follows:
2. After all of my bills are paid and all of my property is sold, I would like the money to be divided equally among:
Boyd & Jean Skille Chris Gustafson
Jack Gustafson Sue Gustafson
Bob Gustafson Lief Skille
Dick Gustafson Sven Skille
¶3 On December 14, 2006, a petition for construction of will was filed requesting the court to determine the number of shares into which the assets of the estate were to be divided. Following a hearing on January 8, 2007, at which none of the interested parties appeared, the court entered a written decision dated February 14, 2007. The circuit court concluded the decedent’s use of the word “equally” required a division per capita, according to the number of individuals listed in the will. Therefore, the court ordered the estate divided into eleven shares. Carrie now appeals, pro se. Neither the personal representative nor any other heir appeals the circuit court order.
¶4 The construction of a will involves a question of law which
we decide de novo. Furmanski v. Furmanski,
196
¶5 Here, the circuit court concluded the will was
ambiguous. We agree. The decedent may have intended Boyd and Jean
receive one share as husband and wife, or he may have intended each receive a
separate share. The language suggests
either disposition. However, resorting
to surrounding circumstances or extrinsic evidence does not assist us in resolving
the interpretation problem.[3] Neither party develops an argument concerning
how the circumstances surrounding the execution or extrinsic evidence could
shed light on the ambiguity and we will not abandon our neutrality to develop
arguments. See M.C.I., Inc. v. Elbin,
146
¶6 The circuit court resorted to the rules of will construction
to resolve the ambiguity, and was correct in doing so. The circuit court observed in its decision
that Wisconsin courts have “consistently held that when the language of a will
directs that legatees shall take ‘equally,’ such language imports a division per capita.” The circuit court relied on Will
of Asby, 232
It also appears that the courts are practically unanimous in holding that when the language of a will directs that legatees shall take “equally” or “share and share alike,” such language imports a division “per capita.”
¶7 We reach the same conclusion as the circuit court. We conclude the decedent’s use of the word
“equally” required a division according to the number of individuals listed in
the will. There is nothing properly
before this court to indicate a contrary intent which is required to overcome
the general presumption of per capita
division. See Mahon v. Security First
Nat’l Bank, 56
¶8 Carrie argues the general rule of per capita division relied upon by the circuit court is inapt. Carrie insists no “per stirpes/per capita dilemma exists in this case. George Skille’s estate is to be divided among specific named persons. None of the estate is to be distributed to the issue or descendants of a specific person.” Carrie insists that “a common sense reading” of the will demands the estate should be divided into ten shares rather than eleven. We are unpersuaded. Case law cited by Carrie does not support the proposition that the general rule of per capita distribution be limited to situations where a will provides for division among the issue or descendents of a specific person.
¶9 Carrie also argues that with the exception of “Boyd &
Jean,” each beneficiary is named individually on a separate line. Carrie insists that when a testator uses
language in a particular way with respect to some legatees and not with respect
to others, it may be presumed the testator intended to make a distinction
between the two. Carrie relies upon Zens
v. Ferdinand, 7
¶10 Carrie next argues the law prefers an interpretation in a will that
keeps property in the normal channel of descent and benefits the heirs at law,
relying upon Crow v. Marshall & Ilsley Bank, 17 Wis. 2d 181, 186-87, 116
N.W.2d 106 (1962). Carrie notes that
Jean Skille is not an heir at law. Respondents
contend the rule of will construction proposed by Carrie has no application
here. As respondents point out, Carrie
overlooks the fact that another person not a blood relative is also named in
the will, son-in-law Jack Gustafson.
Carrie does not reply to this argument,[4]
and it is therefore deemed conceded. Charolais
Breeding Ranches, Ltd. v. FPC Secs. Corp., 90
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5 (2003-04).
[1] Carrie Gustafson, a granddaughter of the decedent, was not a party to the circuit court proceeding. However, as a beneficiary under the will, she qualifies as an aggrieved party for purposes of appeal. Wis. Stat. § 879.27(1) (2003-04), provides: “Any person aggrieved by any appealable order or judgment of the court assigned to exercise probate jurisdiction may appeal….” There is no dispute the circuit court’s decision is an appealable order or judgment. The decision states: “This decision shall constitute the order of the court.”
[2] Carrie, a non-resident attorney, was admitted pro hac vice on July 9, 2004, to appear and participate in the action as counsel for the personal representative. Many of the proceedings before the circuit court involved Betty Skille, the decedent’s second wife, whom he married on January 24, 1992. Those proceedings are not the subject of this appeal.
[3] We note the parties attempted to place several documents before the circuit court at the time of the hearing. A letter brief submitted after the hearing by Attorney Katherine Stewart, for the personal representative, indicated that a layperson appeared at the hearing bearing a letter on behalf of Boyd Skille. Attorney Stewart objected to the admission of the letter on various grounds and the letter brief states the circuit court indicated Boyd’s letter would be filed but not considered. Similarly, the letter brief submitted by Attorney Stewart discussed and appended purported excerpts from a deposition of Betty Skille, together with a purported will that Betty wrote for the decedent one year prior to his death. However, the purported will was not witnessed as required by Wis. Stat. § 853.03(2) (2003-04), nor is there any affidavit or other authentication accompanying the document. Moreover, there was no affidavit or other authentication accompanying the purported deposition excerpts of Betty Skille. Carrie attached the purported deposition excerpt to the appendix to her brief; however, Carrie does not cite or refer to the document in her arguments and in fact insists that “Judge Harrington properly did not look outside the will for evidence of George Skille’s intent.” We can find no indication the circuit court considered any of these documents in its decision and we shall not do so.
[4] Carrie filed no reply brief.