Brandstedter v. Brandstedter's Estate (In re Brandstedter's Estate)

• Decision Date: 02 April 1929
• Citation: 224 N.W. 735,198 Wis. 457
• Parties: IN RE BRANDSTEDTER'S ESTATE. BRANDSTEDTER v. BRANDSTEDTER'S ESTATE ET AL.
• Court: Wisconsin Supreme Court

198 Wis. 457

224 N.W. 735

IN RE BRANDSTEDTER'S ESTATE.BRANDSTEDTER

v.BRANDSTEDTER'S ESTATE ET AL.

Supreme Court of Wisconsin.

April 2, 1929.

Appeal from an order of the County Court for Jackson County; Frank Johnson, Judge. Affirmed.

Petition of Mathias Brandstedter, filed October 12, 1927, asking the amendment of the final judgment in the estate of John Brandstedter, entered September 21, 1897. From an order entered May 3, 1928, denying the prayer of the petition, the petitioner appealed.

The will of John Brandstedter, after making certain devises and bequests, provided: “All the rest, residue and remainder of my estates, both real and person (personal), I give, grant, devise and bequeath to my second wife.” The will also provided that, “after the death of my second wife * * * all the rest, residue and remainder of her estates” shall be divided equally between the children of testator's second wife.

The final judgment recited that the scrivener who drew the will, who was not a lawyer, was sworn as a witness and testified. His testimony was not preserved, and the judgment does not recite the substance of the testimony given by him. The final judgment assigned all the rest, residue, and remainder of the estate to the widow, “absolutely, in fee simple and forever.”

Petitioner was a minor when the final judgment was entered. He was not represented by guardian ad litem. He became of age in 1901. He testified that his mother told him that the will gave the land to the children, subject to her life estate, and that he never made any investigation of the records until after his mother died in 1927. He then filed this petition asking that the final judgment in his father's estate entered in 1897 be so amended as to vest the title to his father's real estate in his children, instead of in his widow.A. H. Shoemaker, of Eau Claire, for appellant.

E. M. Bradford, of Augusta, and E. S. Jedney, of Black River Falls, for respondents.

STEVENS, J.

[1] 1. The county court had power to construe the will in the final judgment so far as it was necessary in order to assign the estate of the testator. In fact the court could not assign the estate by the final judgment “without construing the will.” Estate of Lyons, 183 Wis. 276, 279, 197 N. W. 710, 712.

[2][3][4] 2. The will was so ambiguous as to permit the introduction of proof that would aid the court in determining the intent of the testator. Under the presumption as to the regularity of judicial proceedings, we must assume the proof taken when the final judgment was entered was confined to testimony which might properly be received for the purpose of ascertaining the intent of the testator, which must be gathered from the will itself, viewed in the light of the attending circumstances.

[5][6] 3. The construction given the will in the final judgment is binding on all parties interested in the estate until reversed or set aside upon appeal or in some proceeding that constituted a direct attack upon that construction of the will. Triba v. Lass, 146 Wis. 202, 204, 131 N. W. 357. Appellant cannot make this application to amend the final judgment serve the purpose of an appeal to set aside or modify the construction given to the will in the final judgment. The time within which he could appeal from that judgment has long since expired.

[7] 4. Appellant cannot have that final judgment set aside or modified on the ground, as he alleges, that the court based its construction upon evidence erroneously received to...