Summary
disapproving In re Will of Nielsen, 256 Wis. 521, 41 N.W.2d 369, cited by Bertha
Summary of this case from Bankers Trust Co. v. AllenOpinion
September 12, 1956 —
October 9, 1956.
APPEAL from an order of the county court of Waupaca county: A. M. SCHELLER, Judge. Affirmed.
For the appellant there was a brief by Eberlein Eberlein of Shawano, and oral argument by Frederic C. Eberlein.
For the respondents there was a brief by N.E. Wiese, attorney, and Zwickey Zwickey of counsel, all of Clintonville, and oral argument by Mr. Wiese and Mr. A. Don Zwickey.
Proceeding for construction of a will.
William Rosnow executed his will on January 18, 1949. He died in November, 1954. His wife had died sometime previously. The heirs-at-law and next of kin who survived him were his sons, Arthur and Leonard, and his grandchildren, Norman and Noami, who were children of William, Jr., a deceased son of the testator. The paragraphs of the will material to this appeal are:
First: A legacy of $500 to Norman.
"Second: I hereby mention the name of my granddaughter, Noami Rosnow, of Clintonville, Wisconsin, in loving remembrance, it being my will that she shall share in no part of this my estate.
"Fourth: I hereby mention the name of my son, Leonard Rosnow, of Milwaukee, Wisconsin, in loving remembrance, it being my will that he shall share in no part of this my estate.
"Tenth: All the rest, residue and remainder of my property of whatsoever kind, nature or description and wherever the same may be situated, I give, devise and bequeath, in equal and undivided shares, share and share alike, to my following named children, i. e., to my beloved daughter, Meta Larson of Clintonville, Wisconsin, an undivided one-half (1/2) share; to my beloved son, Arthur Rosnow, of Cecil, Wisconsin, an undivided one-half (1/2) share.
"In the event, however, that my son, Arthur Rosnow should predecease me, then, and in that event, I will and direct that the share which my son Arthur Rosnow receives under the third and tenth paragraphs of this my last will and testament, be assigned and belong to my beloved grandson, Gerald Rosnow."
Meta having died without issue before the death of the testator, this proceeding was brought to construe paragraph Tenth. The trial court determined that the share of Meta in the residue lapsed and adjudged that it be distributed as intestate property, that is, the son Arthur would take one third of Meta's half, the son Leonard would take one third, and the grandchildren Norman and Noami would divide equally the one third which their father, testator's son, William, would have been entitled to if he had survived the testator. Arthur has appealed in his capacity of executor. He points out that this construction gives a portion of the estate to Leonard and Noami notwithstanding the provisions of paragraphs Second and Fourth.
The appellant submits that persons expressly disinherited are disqualified from receiving any part of the estate under any theory and, preferably, the entire residue should be assigned to the only surviving individual mentioned in the residuary clause; that is, Arthur. Or, less desirable but still acceptable, Meta's share of the residue should be distributed among the next of kin who have not been disinherited by the will. He relies mainly on Will of Nielsen (1950), 256 Wis. 521, 41 N.W.2d 369, in which we gave great consideration to extrinsic facts and circumstances and reached a conclusion that the death of one of the residuary heirs did not result in a lapsed legacy but brought into effect a presumed wish of the testator's that some, but not all, of his heirs-at-law should divide the residue though there were no express terms of the will excluding any of them. The extrinsic considerations in Will of Nielsen, supra, seem now to be much less persuasive to the result then reached than they did when the case was determined. On the other hand, Will of Ziehlke (1939), 230 Wis. 574, 284 N.W. 497, which is not referred to in the Nielsen opinion presents the same problems as the case at bar and disposes of them according to what we consider must be the rule when, by lapse of a legacy a partial intestacy has occurred. In Ziehlke, paragraph Fourth described a residuary legatee but no person fulfilled the description when the testator died. There was a residue for division and there were nieces and nephews who were heirs-at-law but it was contended that they could not share in the division because of a paragraph in Mr. Ziehlke's will reading (p. 575):
"`Fifth: For reasons known to all, it is my will and I hereby direct that no part of my estate shall go to any of my nieces or nephews.'"
Mr. Justice WICKHEM spoke for the court, saying p. 579):
"The trial court appears to have been impressed by the fifth clause in which the testator disclosed a positive intention that his nieces and nephews take nothing under his will. The answers to this are, (1) that they do not take under the will, and (2) that this paragraph throws no light upon the meaning of the fourth paragraph as applied to the present situation. If one of the nieces had actually nursed him during his last illness, the fifth clause might be effective to exclude her as a beneficiary under the fourth clause. Here, however, the nieces and nephews do not take under the will but by law. The fourth paragraph being the residuary clause and the gift failing, the residue goes by operation of the law of descent. No doubt this is not what testator intended, but the only way in which he could vary the rules of descent would be by making an effective gift at variance with these. This he did not do." (Our emphasis.)
We find no escape from the logic of that opinion if we are to refrain, as we ought, from writing a new will for the testator. Therefore, we conclude that in the instant will the rules of descent take over when the testator made no provision for distribution of Meta's share of the residue in the event he outlived her. That law directs the distribution of her share in the manner directed by the learned trial court.
We are asked by respondents to inform the trial court upon remand that the executor's (appellant's) costs and disbursements must be paid by him personally, and not allowed as a charge against the estate, because of his strong personal interest in the success of his appeal. We do not attempt to control the trial court's discretion in its allowance of the executor's account until it becomes manifest that discretion has been abused.
By the Court. — Order affirmed.