In re Korn's Will

• Decision Date: 08 May 1906
• Citation: 128 Wis. 428,107 N.W. 659
• Parties: IN RE KORN'S WILL.
• Court: Wisconsin Supreme Court

128 Wis. 428

107 N.W. 659

IN RE KORN'S WILL.

Supreme Court of Wisconsin.

May 8, 1906.

Appeal from Circuit Court, Waukesha County; James J. Dick, Judge.

Action by William Korn for construction of the will of Henry Korn, deceased, against Perry L. Friz, executor, and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Henry Korn died March 18, 1904, leaving a will whereby, first, he directed payment of debts and expenses out of the personal property; gave to his widow the use and income of all real estate during her life, and directed the executor to pay her such income from the personal property as would provide for her comfort, and proceeded: “After the death of my said wife, I dispose of my property as follows, to wit, Third. I will, devise and bequeath to my son, William Korn, my farm [description] upon the express condition, however, that he shall pay to my daughter, Phillipina Steele, the sum of five thousand ($5,000) dollars within one year after the death of my said wife, and which said sum of five thousand dollars, shall be the portion hereby devised and bequeathed to my said daughter, Phillipina Steele, as her share of my estate. And it is further provided that in case of the death of my said son, William Korn, without issue, then and in that event, I will, devise and bequeath all of my said real estate to my grandchild or grandchildren, who may be living at the time of the death of my said son, William, share and share alike; it being my desire that said real estate shall be kept and retained by persons of my own blood.” By further paragraphs another piece of real estate is devised to a son, Jacob, on condition that if Jacob “shall die without issue, in that event, I bequeath the property so bequeathed to him by this, my last will and testament, to my grandchild or grandchildren who may be living at the time of the death of said Jacob Korn, share and share alike;” then $500 each is given to a child and a grandchild, and then to two daughters certain specified other lands, in fee simple, and all the residue, both real and personal, to the same two daughters. Both the widow and all the children survived the testator, but at the time of the trial in circuit court the widow died. The six children were still living, and William Korn then had one child living, and one of the daughters had living three adult children and another daughter two minor children. Deceased left personal property of the value of about $7,400, the farm devised to William worth about $15,750, the farm given to Jacob worth about $3,000 and other real estate of the value of about $8,000, according to inventory. William made petition in county court for the construction of the will, especially the third clause thereof, alleging that he had not the means to pay Phillipina Steele her $5,000 legacy except by borrowing it upon the security of the farm, and that, to that end, it was essential that he know his title. He claimed that he took an absolute estate in fee simple upon the death of his mother to the farm mentioned, while the executor and other persons claimed that his estate therein was subject to be terminated by his death without issue then living, with remainder over at that time to the grandchildren of the testator then surviving. The trial court, after finding substantially the foregoing facts, adjudged that William Korn has in such lands an estate in fee, defeasible, however, at his death at any time without having issue surviving him at the time of his decease, and subject to the charge of the legacy of $5,000 for Phillipina Steele, and that, upon the death of said William without issue then surviving, his estate will then cease and the lands will then vest in fee in such grandchildren of said Henry Korn, deceased, as may be then living, and will so vest charged with said legacy of $5,000 to said Phillipina Steele so far as the same may then remain unpaid. From that judgment William Korn appeals.Tullar & Lockney (C. C. Gittings, of counsel), for appellant.

Ryan, Merton & Newbury, for respondents.

DODGE, J. (after stating the facts).

The appellant does not contend against the proposition that the gift over to grandchildren is so associated with the gift to the son, William, that it evinces the intention of the testator not to give an absolute fee to William unless the condition of the limitation over to such grandchildren, namely, that William shall die without issue, refers to such death during the lifetime of the testator. This, however, he contends is the true construction, and invokes the rule, long recognized, that such a phrase as a gift to one with limitation to others in case of his death, or death without issue, ordinarily is to be construed as applying only to the condition of things prior and up to the death of the testator. Patton v. Ludington, 103 Wis. 629, 79 N. W. 1073, 74 Am. St. Rep. 910. This rule, however, like all others with reference to construction of wills, is but a rule of probability and yields readily to anything in words or context to indicate a different intention of the testator, which, as so often said, is the ultimate object of search and discovery in all attempts to construe wills. Benson v. Corbin, 145 N. Y. 351, 40 N. E. 11;Donges' Estate, 103 Wis. 497, 79 N. W. 786, 74 Am. St. Rep. 885. In considering the present will, and especially the third paragraph thereof quoted in the statement of facts, we find at least three facts strongly indicating that the testator in mentioning the event of the death of his son William without issue, as to which he desired to provide, referred to a...