Futterlieb v. Wight (In re Wilm's Estate)

Citation196 N.W. 255,182 Wis. 242
Decision Date11 December 1923
CourtUnited States State Supreme Court of Wisconsin


Appeal from Milwaukee County Court; M. S. Sheridan, Judge.

In the matter of the estate of Charles Wilm, deceased. Proceedings for probate of will by Charles Futterlieb against W. W. Wight, guardian ad litem, and others. From an order denying probate, proponent appeals. Affirmed.

Proceedings for the probate of the will of Charles Wilm, deceased. The testator made his will about 8:30 o'clock a. m. March 14, 1922, and died at about 11 o'clock p. m. on the same day. When the will was executed by him and signed by the witnesses he was sitting up in a bed located in the northwest corner of a bedroom about 10 feet square. In the center of the south wall was a door leading out into the living room, which was about the size of the bedroom. Near the northwest corner of the living room a door led out to the kitchen. A little west and north of this door and in the center of the kitchen stood a table. After the testator had signed the will sitting up in the bed, the scrivener, Max Gruenwald, took the will and requested a witness, Edward Johnson, who had been standing near the door leading from the bedroom to the living room to follow him to the kitchen, which he did. Here upon the kitchen table the two signed the will as witnesses. A third witness, Anton Ernst, came in later and signed it. The court found:

“That Max Gruenwald and Edward Johnson signed said instrument in the presence of each other but not in the presence of said Charles Wilm, and that Anton Ernst thereafter signed said instrument, not in the presence of Charles Wilm, and that he did not see either Max Gruenwald or Edward Johnson sign said instrument, the same having been signed by them before his entry into the kitchen, and that none of the witnesses to said instrument signed said instrument in the presence of the testator, and that neither one of said witnesses was personally or directly requested to sign said instrument as a witness by said Charles Wilm, and that said Charles Wilm did not declare, in the presence of either Edward Johnson or Anton Ernst, that said instrument was his last will and testament.”

The court denied the probate of the will because it was not executed in the manner provided by law, and the proponent appealed.Max P. Kufalk, of Milwaukee, for appellant.

Cannon, Bancroft & Waldron and William W. Wight, all of Milwaukee, for respondents.

VINJE, C. J. (after stating the facts as above).

[1] The question raised by the appeal is whether the witnesses, or any of them, signed in the presence of the testator as required by section 2282, Stats. 1923. Were this a case of first construction of the statute it might well be that the facts bring the attestation within the statute giving to the word “presence” the broad liberal meaning that some courts have given it. But our court in an early day, in the case of Will of Downie, 42 Wis. 66, decided in 1877, held that the witnesses must subscribe in a place where the testator, if not...

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4 cases
  • Kai v. Kai
    • United States
    • Wisconsin Court of Appeals
    • June 29, 1995
    ...207-09, 280 N.W.2d 684, 689-90 (1979), our supreme court rejected the concept of constructive presence. Citing Estate of Wilm, 182 Wis. 242, 244, 196 N.W. 255, 255 (1923), the court held that the "presence" requirement of § 853.03, STATS., must be "strictly constru[ed]" to require a will to......
  • Hulett's Estate, In re
    • United States
    • Wisconsin Supreme Court
    • January 2, 1959
    ...the witnesses when the witnesses signed, but they were in another room where he could not see what was being done. In re Estate of Wilm, 1923, 182 Wis. 242, 244, 196 N.W. 255. It was said, 'Even if the word 'presence' is construed to mean within a sphere where the senses of the testator can......
  • Haugk's Estate, In re
    • United States
    • Wisconsin Supreme Court
    • June 29, 1979
    ...of the large number of people in the room, preventing the other parties' view. The Hulett case, in part, relies on Estate of Wilm, 182 Wis. 242, 196 N.W. 255 (1923), which bears some factual similarity to the case at bar. In Estate of Wilm the drafting attorney took the will from the presen......
  • Poindexter's Adm'R v. Alexander
    • United States
    • United States State Supreme Court — District of Kentucky
    • February 24, 1939
    ...the adverse evidence of the subscribing witnesses." (Our italics). In support of this last statement, the author cites In re Wilm's Estate, 182 Wis. 242, 196 N.W. 255. In that case, it does not appear whether or not the attesting witnesses were the only ones who testified. However, the cour......

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