This proceeding was begun on November 20, 1939, by Oren E. Stratton, Marion Stratton Lindbloom, Bernice Stratton Erickson, Elton B. Stratton, C. John Windedahl, Jr., Ralph Windedahl, Velma Windedahl Benson, Lester M. Windedahl, Vera Engoa, Harley Pollard, and Thomas N. Burke, guardian ad litem, appearing on behalf of Wayne E. Windedahl, a minor, appellants, praying for a construction of the will of Margaret Phillips, deceased. The appellants are grandnephews and grandnieces of the deceased. The respondents, E.J. Rolling and C.A. Paull, are the co-administrators with the will annexed of the estate of Margaret Phillips, deceased.
Margaret Phillips died testate February 10, 1938. Her will, which was duly admitted to probate, is as follows:
Mar. 16th, 1937.
This my last will and testament. I bequeath following:
I bequeath to Mrs. Carrie Rolling the sum of one thousand ($1,000).
to Aldin Thompson five hundred dollars ($500).
to Mildred Paull the house and lots or home.
to Laura Avenell, lg rug in living room.
to Edna Carroll one hundred dollars ($100).
to Matthew Reger one hundred dollars ($100).
to Laura Avenell two hundred dollars ($200).
to Wisconsin Historical Society the yellow and purple china set to be always kept.
to M. E. Church one hundred dollars ($100).
to Linden Cemetery fifty dollars ($50) to be placed in fund for care of Phillips lot.
All remaining properties to be equally divided among my nieces and nephews. *Page 270
This succeeds all previous wills or documents signed by me.
I am of clear mind and thinking at time of this will.
MARGARET PHILLIPS.
The deceased left surviving her the following heirs: Carrie Rolling, Mrs. Belie Pollard, Rene Glanville, and Clara McKay, nieces; Aldin Thompson, William E. Thompson, and Joseph R. Thompson, nephews; and Oren E. Stratton, Marion Stratton Lindbloom, Bernice Stratton Erickson, Elton B. Stratton, C. John Windedahl, Jr., Ralph Windedahl, Velma Windedahl Benson, Lester M. Windedahl, Vera Engoa, Harley Pollard, and Wayne E. Windedahl, grandnieces and grandnephews. The appellants, Oren E. Stratton, Marion Stratton Lindbloom, Bernice Stratton Erickson, and Elton B. Stratton are the children of Gertrude Stratton, niece of the testatrix, who died in 1921. The appellants, Vera Engoa and Harley Pollard are children of Jelina Pollard, a niece of the testatrix, who predeceased the testatrix, the date of her death not appearing. The appellants, C. John Windedahl, Jr., Ralph Windedahl, Velma Windedahl Benson, Lester M. Windedahl, and Wayne E. Windedahl are the children of Elizabeth Windedahl, a niece of the testatrix, who died in 1934.
The testatrix was aware at the time of the making of the will of the fact that these three nieces had predeceased her and that they had left children surviving. None of the survivors were mentioned in the will by name except Carrie Rolling and Aldin Thompson. They were the only survivors who lived within the state of Wisconsin and are named in connection with specific legacies. Some of the grandnieces and grandnephews lived in Chicago, some in South Dakota, and some in California. The testatrix was not in any way estranged from her grandnieces and grandnephews and six of the grandnieces and grandnephews living in South Dakota had visited the testatrix in 1929. The testatrix had photographs of some of the grandnieces and *Page 271 grandnephews, and so far as the evidence shows she was not accustomed to speak of them as her grandnieces and grandnephews.
The will was drawn by a layman, C.A. Paull. He read it to Mrs. Phillips and she expressed her satisfaction with it. Mr. Paull then called in a justice of the peace, Mr. F.F. Oldenburg, and the will was reread in his presence. The court held that the testatrix intended to include in the residuary clause only those children of the testatrix's brothers and sisters who were living at the time of her death, namely, Carrie Rolling, Mrs. Belle Pollard, Rene Glanville, and Clara McKay, nieces; and Aldin Thompson, William E. Thompson, and Joseph R. Thompson, nephews. From the judgment entered accordingly, the grandnieces and grandnephews appeal. The following opinion was filed December 3, 1940: The language of the will upon its face is plain and unambiguous. Evidence was offered upon the hearing with respect to the names and residences of the surviving heirs and their social relations with the deceased, which was received over the objection of the coadministrators. It is considered that the court properly received this evidence.
Appellants contend that under sec. 238.13, Stats., the property should be divided between the nephews and nieces who were living and the issue of those nephews and nieces *Page 272 who are deceased, the latter taking per stirpes and notper capita. They seek to sustain this contention on the ground that the residuary bequest was not a gift to a class for the reason that no words of survivorship were used, relying upon Estate of Bloch (1938), 227 Wis. 468, 469,278 N.W. 875. In Estate of Bloch, the language of the will was —
"I give and bequeath to my nieces and nephews [naming all seven] the sum of $8,000, to be divided between them share and share alike and to their heirs and assigns forever."
In the case of Will of Griffiths (1920), 172 Wis. 630,635, 179 N.W. 768, as well as in Estate of Bloch, supra, the gift was to a number of named persons without words of survivorship. Such a gift was held to be a gift not to a class but to the persons named in the will. These cases have no application to the case at bar where the gift is not to named persons but to persons of a class, to wit, all of the nephews and nieces of the testatrix. In Will ofGriffiths, supra, it is said:
"It will be found that in most of the cases when the courts have construed wills to have created classes having some such effect as is claimed by counsel for the appellants, the bequests have been made to `heirs,' `children,' `grandchildren,' `brothers,' `sisters,' `nephews,' `nieces,' or to some other group of persons without specifically naming the beneficiaries."
This is the general rule. See cases cited 75 A.L.R. 791. The case at bar falls clearly within the rule, and hence is a gift to a class. Where there is a gift to a class the members of the class take equally. Appellants argue that the children of the deceased nieces and nephews should takeper stirpes. If the grandnieces and grandnephews are included within the term "nieces and nephews," then the estate must be distributed equally between the members of the class. This would result in each one of the appellants receiving *Page 273 the same amount as each of the surviving nieces and nephews. There is nothing in the will or surrounding circumstances to indicate that the testatrix contemplated or intended any such result.
The appellants argue that although their respective parents died before the execution of the will, nevertheless sec. 238.13, Stats., should apply, and that the descendants of the deceased nieces and nephews should take per stirpes. There are two lines of authority upon the question of whether the statute operates in favor of the descendants of one dead at the time of the making of the will who had he survived the testator would have taken under a gift to a class. It is to be noted that in order to sustain appellants' contention it is necessary, in effect, to hold that there is a presumption that the testator intended to benefit not only members of a class who might survive him but also the descendants of those who at any time answered to the class description. The decided weight of authority is that under such circumstances there is nothing in the will to indicate a purpose on the part of the testator that the issue of members of a class deceased when the will was made should share in the bounty. It is so held in Georgia, Iowa, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and Washington. See annotations, 3 A.L.R. 1691, and cases cited. The states holding to the contrary are Kentucky and Illinois. We think the majority rule is upheld by the sounder reasoning. Where a person is dead, who, had he lived, would have been a member of the class, has predeceased the testator, the testator has before him all of the facts. If competent to make a will he is presumed to be able to comprehend not only the nature and extent of his property but the relation to him of those who have claims upon his bounty. If in the face of these facts he uses language which is applicable at the time he uses it only to certain persons, how can he be said to intend to include other persons? A deceased nephew or niece is no longer a nephew *Page 273a or niece. That relationship has been severed by death. It lies in the past.
It is considered that under the circumstances of this case the testatrix intended the residue of her estate to go to her surviving nieces and nephews, and the trial court correctly so held.
By the Court. — Judgment affirmed.
The following opinion was filed March 11, 1941: