Gallagher v. McKeague

• Decision Date: 02 May 1905
• Citation: 125 Wis. 116,103 N.W. 233
• Parties: GALLAGHER ET AL. v. MCKEAGUE ET AL.
• Court: Wisconsin Supreme Court

125 Wis. 116

103 N.W. 233

GALLAGHER ET AL.

v.MCKEAGUE ET AL.

Supreme Court of Wisconsin.

May 2, 1905.

Appeal from Circuit Court, Waushara County; Charles M. Webb, Judge.

In the matter of the last will and testament of Richard Gallagher, deceased. From a judgment of the circuit court construing the will of deceased, and affirming the judgment of the county court, Mary McKeague and another, devisees, appeal; Richard Gallagher and others (heirs), respondents. Affirmed.

The facts in this case are undisputed, and to the effect that the testator executed his last will and testament October 13, 1902; that about three weeks afterwards his wife died at the age of 84 years; that November 27, 1902, the testator died at the age of 81 years; that January 6, 1903, his will was admitted to probate; that he left, him surviving, no relative nearer than nephews and nieces; that four of his nephews and nieces resided in the state of Maine; that three of them resided in the state of Montana, and four in the state of Wisconsin. By his will the testator specifically disposed of all of his real estate, consisting of four separate parcels, as therein described. Out of his personal estate he made the following bequests: $200 to Sarah McGraw; $200 to Anna McGraw; one-half of a mortgage, which the testator held against Mary Bower and her husband, to Mary Bower; $200 to Sarah Younglove; $5 to Kate Carpenter; $50 to Father Fisk, of Berlin; $50 to the father who occupied St. Joseph's Church in Wautoma; and $500 to erect a monument on his lot in the cemetery. The only other disposition of personal property contained in the will is by the tenth provision thereof, which reads as follows: “All the household furniture and effects I will, devise and bequeath to Mary McKeague and Maggie McKeague.” The county court and the circuit court found that by these express terms of the will there was only bequeathed to Mary and Margaret out of the personal estate the “household goods and furniture, inventoried at $104.90.” The court, among other things, also found, as matters of fact, and also as matters of law, in effect, that after the assigning of the real estate as mentioned in the will, and the payment of all the just debts and funeral expenses, and satisfying the several bequests mentioned in the will, including the “household goods and furniture” mentioned, there remained in the hands of the executor, and realized out of the personal estate in cash, $5,712.92, and in notes, $375.24, and as to those two sums, aggregating $6,088.16, the testator died intestate, and that the same should be assigned and distributed to the 11 nephews and nieces therein mentioned--to each of them one-eleventh part thereof--and thereupon the court ordered and directed that the judgment of the county court be in all respects affirmed, and that the record be remitted to that court for further proceedings in the administration and settlement of said estate; that the respondents recover from the appellants their costs and disbursements in the circuit court, to be taxed; and that such judgment be docketed and enforced in the manner provided by law; and ordered judgment to be entered accordingly. From the judgment so entered the said Mary and Margaret McKeague bring this appeal.John J. Wood, Jr., for appellants.

E. F. Kileen and Perry Niskern, for respondents.

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

It is claimed by the appellants that the trial court improperly held that the testator died intestate, as to a large portion of his personal estate. This contention is based upon the arrangement of the provisions of the will, as well as the language employed. The testator specifically devised all of his real estate, as mentioned in the foregoing statement. By the first clause of the will the testator devised to the appellants the house and lot then occupied by him, together with the barn thereto belonging. His moneys, notes, certificates, contracts, and personal property were all in his possession on the premises when he executed the will and when he died. He also made eight specific bequests out of his personal estate, to the aggregate amount of nearly $1,500. And finally, by the tenth clause of the will, he bequeathed to the appellants “all the household furniture and effects.” It is conceded that the question for determination is whether “the word ‘effects' is to be given the significance to which it is entitled when standing alone, or whether such meaning is colored or cut down by association with the word ‘household’ in the same clause.” Counsel invokes the well-established rule that no intention of the testator to die intestate as to part of his estate can be presumed when his words, as found in his will, can fairly be construed to dispose of his whole estate; that whenever the words of a will, fairly construed, are such as to carry the whole estate, it will be presumed that the testator intended to dispose of all his property. Schouler on Wills (3d Ed.) § 490; Ferry's Appeal, 102 Pa. 207;Miller's Appeal, 113 Pa. 459, 6 Atl....