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In re Estate of Seader9/23/2003
n. § 2-4-104 (LexisNexis 2003) should also be considered when determining the intent of the legislature as to the inheritance rights of children who have not been legally adopted: "Persons of the half-blood inherit the same share they would inherit if they were of the whole blood, but stepchildren and foster children and their descendents do not inherit."
TESTAMENTARY INTENT
In their second issue, Kim and Kirk contend that the district court erred in concluding that Neil's will did not evidence an intention that their mother's share of his estate should go to them. They argue that, even if the anti-lapse statute does not preserve the devise to her, this Court should give effect to Neil's intention, as provided by Wyo. Stat. Ann. § 2-6-105 (LexisNexis 2003):
The intention of a testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in the succeeding sections of this article apply unless a contrary intention is indicated by the will.
We note that Wyo. Stat. Ann. § 2-1-102(a)(ii) (LexisNexis 2003) also emphasizes the importance of testamentary intent:
(a) This code shall be liberally construed and applied, to promote the following purposes and policies to:...
(ii) Discover and make effective the intent of a decedent in distribution of his property[.]
Before we address the parties' arguments as to testamentary intent, we will briefly review our standards for the construction of wills. Consistent with the above statutory directives, "the intention of the testator must govern." Hammer v. Atchison, 536 P.2d 151, 155 (Wyo. 1975). Furthermore, the intent of the testator must be ascertained solely from the meaning of the words used in the will. Churchfield v. First Nat. Bank of Sheridan, 418 P.2d 1001, 1003 (Wyo. 1966); In re Boyd's Estate, 366 P.2d 336, 337 (Wyo. 1961). Where the will is clear and unambiguous, the court may not read into a will something the testator did not place there. Dainton v. Watson, 658 P.2d 79, 81 (Wyo. 1983); Kortz v. American Nat. Bank of Cheyenne, 571 P.2d 985, 987 (Wyo. 1977). The courts will not supply words for the testator. In re Lendecke's Estate, 329 P.2d 819, 822 (Wyo. 1958). Wyo. Stat. Ann. § 2-6-112 (LexisNexis 2003), which requires wills to be in writing, precludes ascribing to a testator any intention not expressed in the instrument itself. Churchfield, 418 P.2d at 1003; In re Boyd's Estate, 366 P.2d at 337.
In granting summary judgment to Neil J. and Charles on this issue, the district court made the following findings:
The Last Will and Testament of Neil Adam Seader is clear and unambiguous. Based on the clear and unambiguous language of the Last Will and Testament there is no indication that it was the decedent's intention to have Ms. Schroeder's children inherit the share Ms. Schroeder would have inherited had she survived the decedent. To the contrary, such a provision is nowhere to be found within the Last Will and Testament.
The argument of Kim and Kirk that Neil intended for them to take their mother's share of his estate is contained in one paragraph of their appellate brief:
Under the will, Neil Adam Seader left the residue of his estate to three individuals. The will does not identify the relationship of any of these individuals to the testator and the testator made no distinction between them in the residuary clause. This evidences an intention that these three individuals be treated identically under the residuary clause. In the specific bequest clause, the testator left his coins to the same three individuals equally, "share and share alike." Again, evidence
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