Allen v. Boomer

• Citation: 52 N.W. 426,82 Wis. 364
• Parties: ALLEN v. BOOMER ET AL.
• Decision Date: 24 May 1892
• Court: Wisconsin Supreme Court

82 Wis. 364

52 N.W. 426

ALLEN

v.BOOMER ET AL.

Supreme Court of Wisconsin.

May 24, 1892.

Appeal from circuit court, Fond du Lac county; N. S. GILSON, Judge.

Proceeding in the county court in the will of Charity S. Allen, deceased, by Edward Allen, as executor thereof, for an allowance of his final account, and demanding that the residue of the estate be assigned to him absolutely under the will. From so much of a judgment allowing the account, which construed the will as giving him a life estate only, Allen appeals to the circuit court, who entered judgment supporting the judgment of the county court. From this judgment Allen and Cora J. Boomer and Cora J. Moulton, heirs at law of a daughter of testatrix, appeal. Judgment on construction of the will.

The other facts fully appear in the following statement by LYON, C. J.:

In 1884, Charity S. Allen executed her last will and testament in due form, the material portions of which are as follows: “I bequeath to my husband, Edward Allen, my entire estate, both real and personal, of every name and nature. * * * I further bequeath out of my and my husband's property such sum as may be necessary for the support and education of Charity Wyman and Maud Wyman, daughters of Jason Wyman, and Fred L. Allen, until they shall be twenty-one years of age, according to the mutual agreement between me and my husband, as is expressed in his will. I further will and bequeath that after my death all the property that shall be left that was mine or my husband's shall be divided between his and my legal heirs, one half to his heirs and one half to mine.” Her husband is named in the will as executor of her estate. At the same time Edward Allen executed his will in similar terms, in which he devised and bequeathed all his property to his wife, charging their two estates with the support of the same minors, and making the same provision for the distribution of both estates after the death of both to their respective heirs as is contained in the will of Mrs. Allen. The will also appoints Mrs. Allen executrix of his estate. Mr. and Mrs. Allen had then been married about eight years. There were no children of the marriage, but each had children by a former marriage. Mrs. Allen died in 1887, leaving a daughter, Mrs. Griffen, and the two Wyman girls named in her will, who are daughters of her deceased son, Jason Wyman. She left no other heirs. Mrs. Griffen died after her mother, intestate, leaving as her only heirs at law her daughter, Cora J. Boomer, and her granddaughter Cora J. Moulton. Edward Allen has two sons, one of whom is Fred L., one of the minors named in Mrs. Allen's will. Upon the death of Mrs. Allen, Edward Allen presented her will to the proper county court for probate, and after a contest, which reached this court, (Allen v. Griffin, 69 Wis. 529, 35 N. W. Rep. 21,) the will was duly admitted to probate. Edward Allen thereupon qualified as executor thereunder, and administered the estate. In due time he presented his final account as such executor to the county court for allowance, and demanded that the residue of the estate be assigned to him absolutely under the will. The account was allowed and settled, and for the purposes of the distribution of the estate to those entitled thereto the court construed the will as follows: “That Edward Allen, the surviving husband of said testatrix, has the use during his life of her estate, real and personal, except such portion of said property or estate--that is, the principal thereof--as shall be necessary for the support and education of Charity and Maud Wyman until they are twenty-one years of age, or until the death of the said Edward Allen, and shall be used for that purpose. Upon the death of said Edward Allen what remains of said estate is to be divided between the heirs of said testatrix.” The executor appealed to the circuit court from that portion of the order and judgment of the county court construing the will. On the hearing the circuit court admitted the testimony of the person who drew the wills as to the instructions he received from Mr. and Mrs. Allen in that behalf, and also admitted the will of Edward Allen in evidence, all against the objections of the executor. The circuit court held “that by her said will the said Charity S. Allen gave to the said Edward Allen, her husband, a life estate in all her property and estate, charged with and subject to a trust for the support and education of her two granddaughters, Charity Wyman and Maud Wyman, and Fred L. Allen, a son of said Edward Allen, until they should reach the age of twenty-one years respectively; said support and education to be paid for from the income of said estate, if the same is sufficient therefor, and, if not sufficient, then from the capital of said estate, so far as necessary. And that, after all of said minors have arrived at the age of twenty-one years, and after the death of said Edward Allen, the remainder of said estate, under said will, is to be distributed equally among the heirs of said Charity S. Allen.” Judgment was entered accordingly. The executor and legatee, Edward Allen, and Cora J. Boomer and Cora J. Moulton, heirs of the deceased, Mrs. Griffen, appeal from the judgment of the circuit court.Gary & Forward and J. H. Merrill, for appellants.

B. E. Van Keuren, for respondent.

LYON, C. J., ( after stating the facts).

It is earnestly maintained on behalf of the executor and legatee, Edward Allen. that the will of Mrs. Allen is unambiguous in its terms, and hence that no testimony of extrinsic facts is admissible to aid in the construction thereof. We think this is a correct position. Although the will was drawn by a person not learned in the law, (one learned in the law would shrink from drawing such a will,) yet it must be admitted that it is clear in its terms, and...