PUBLISHED OPINION
Case No.: 95-1015-FT
Complete Title
of Case:
In the Matter of the Estate of
Ruth M. Larson, Deceased:
PATRICIA L. GROCHOWSKI,
Appellant,
v.
ROBERT LARSON, Personal
Representative of the Estate,
Respondent.
Submitted on Briefs: June 19, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: August 2, 1995
Opinion Filed: August
2, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Green Lake County
(If
"Special", JUDGE: WILLIAM MC MONIGAL
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the appellant, the cause was submitted on
the brief of James Manke of Manske Law Office of Oshkosh.
Respondent
ATTORNEYSOn behalf of the respondent, the cause was submitted on
the brief of Jeanne E. Baivier of Engler Flanagan Reff Baivier
Bermingham & Zierdt, S.C. of Oshkosh.
|
COURT OF APPEALS DECISION DATED AND RELEASED August
2, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1015-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
In the
Matter of the Estate of
Ruth
M. Larson, Deceased:
PATRICIA
L. GROCHOWSKI,
Appellant,
v.
ROBERT
LARSON, Personal
Representative
of the Estate,
Respondent.
APPEAL
from an order of the circuit court for Green Lake County: WILLIAM MC MONIGAL, Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
NETTESHEIM,
J. Patricia L. Grochowski has appealed from an
order denying her claim for $40,000 from the estate of her mother, Ruth M.
Larson (the decedent). Grochowski's
claim was based on Article One, Section A, of the decedent's will, which gave
the decedent's “tangible personal property wherever located” to her surviving
children in equal shares. The sole
issue on appeal is whether the decedent's bank accounts, certificates of
deposit, annuity and trust proceeds, plus cash in the amount of $477.11,
constituted tangible personal property.[1] We agree with the trial court that under
Wisconsin law these items constitute intangible, rather than tangible, personal
property and thus passed to persons other than Grochowski under the decedent's
will. We therefore affirm the trial
court's order.
The
paramount object of will construction is to ascertain the decedent's
intent. Holy Family Convent v.
DOR, 157 Wis.2d 192, 195, 458 N.W.2d 579, 581 (Ct. App. 1990). Intent is gleaned from the will's language,
the entire testamentary disposition and the circumstances surrounding its
execution. Id. at 196,
458 N.W.2d at 581. Language employed by
a testator must be given its common and ordinary meaning. See Schuler v. Cobeen,
270 Wis. 545, 550, 72 N.W.2d 324, 327 (1955).
In
this case, the only evidence before the trial court regarding the decedent's intent
consisted of the will itself. Because
the facts were therefore undisputed, the interpretation of the decedent's will
presents a legal question which we review de novo. Holy Family Convent, 157 Wis.2d at 195, 458 N.W.2d
at 580.
While
no statutes or cases directly address whether cash, bank deposits, annuities
and trust proceeds are tangible or intangible personal property for purposes of
probate, the trial court's determination that they are intangible assets
comports with both the ordinary dictionary definition of the terms and the
construction given to the terms in other areas of the law. Specifically, “tangible property” is defined
as property “which may be felt or touched, and is necessarily corporeal, although
it may be either real or personal (e.g. ring or watch).” Black's
Law Dictionary 1456 (6th ed. 1990).
“Intangible property” is defined as “such property as has no intrinsic
and marketable value, but is merely the representative or evidence of value,
such as certificates of stocks, bonds, promissory notes, copyrights, and
franchises.” Id. at 809.
A
bank account is a contract between a depositor and a financial institution for
the deposit of funds. Section
705.01(1), Stats. An annuity confers a right to receive
payments. Black's, supra, at 90 . Since bank deposits, checks, annuities and trust agreements are
all agreements or documents conferring rights to the management and payment of
money or assets, they fall within the definition of intangible personal
property rather than tangible personal property. They have no value by themselves, but rather represent
value.
This
conclusion is consistent with the law defining tangible and intangible personal
property in other areas of the law, as in construing intangible personal
property to include cash. Section
177.01(10)(a), (d) and (f), Stats.,
of the Uniform Unclaimed Property Act defines intangible property to include
money, checks, drafts, deposits, interest, dividends and income, as well as
money deposited to make distributions, and amounts distributable from various
trusts or custodial funds. Similarly,
in the context of an application for abatement of income taxes upon trust
income, the Wisconsin Supreme Court described the “intangible assets” of the
trust as including stocks, bonds, securities, notes and cash deposits in
banks. Pabst v. Dep't of Taxation,
19 Wis.2d 313, 316, 120 N.W.2d 77, 79 (1963); see also Bulkley v.
Dep't of Taxation, 244 Wis. 404, 406, 12 N.W.2d 684, 685 (1944)
(describing a trust fund containing securities and bank deposits as consisting
of intangible personal property).
In
contrast, “tangible personal property” under the general sales and use tax is
not defined to include assets like bank deposits, annuities or trust proceeds,
and includes coins only when they can be sold or traded as collectors' items
above their face value. See
§ 77.51(20), Stats. Similarly, § 853.57, Stats., describes “tangible articles”
for distribution under a Wisconsin basic will form as items like jewelry,
books, clothing, personal automobiles, recreational equipment and household
furnishings and effects.
Based
on these definitions, we conclude that the trial court properly determined that
the claimed assets were intangible personal property. While we therefore affirm the trial court's order, we deny the
motion filed by the respondent, Robert Larson, for costs and fees for a
frivolous appeal. The question of
whether an appeal is frivolous is decided by this court as a matter of law. J.J. Andrews, Inc. v. Midland,
164 Wis.2d 215, 225, 474 N.W.2d 756, 760 (Ct. App. 1991). Because there are no cases or statutes
directly addressing the issue of whether cash, bank accounts, annuities and
trust proceeds are tangible or intangible personal property for probate
purposes, and because Grochowski made a defensible and reasonable argument to
support her claim that they were tangible assets, we reject Larson's claim that
the appeal was frivolous. See id.
at 226, 474 N.W.2d at 760.
By
the Court.—Order affirmed.