Gallun v. Wolff (In re Mann's Will)

• Decision Date: 05 December 1922
• Citation: 190 N.W. 830,179 Wis. 66
• Parties: IN RE MANN'S WILL. GALLUN v. WOLFF ET AL.
• Court: Wisconsin Supreme Court

179 Wis. 66

190 N.W. 830

IN RE MANN'S WILL.

GALLUN

v.WOLFF ET AL.

Supreme Court of Wisconsin.

Dec. 5, 1922.

Appeal from Circuit Court, Milwaukee County; John C. Karel, Judge.

In the matter of the Estate of Franklin P. Mann, deceased. On application by Albert F. Gallun, executor, against Frances Mann Wolff and others for construction of will. From the judgment rendered the executor appeals. Affirmed.

The will of Franklin P. Mann, duly admitted to probate by the county court of Milwaukee county, contained this provision:

“I give, devise and bequeath unto my sister, Frances Mann Wolff, in addition to the legacy given in the last preceding paragraph, the property owned by her and by me, which said property is situated at 3d & Wrights streets, in the city of Milwaukee, and which said property is now subject to a mortgage of which there remains unpaid the sum of $20,000 principal; if any part of the principal of said mortgage shall remain unpaid at the time of my death, I direct my executor hereinafter named to pay the entire balance of such unpaid principal (whether owing by me or by my said sister), it being my intention that my said sister shall receive title to said property free and clear of said mortgage. If I shall have disposed of my interest in said property prior to the time of my death, then and in that event such devise of my interest in said property shall lapse and this paragraph of my will shall be of no further effect.”

The will was dated December 11, 1918. On April 10, 1920, the said testator by warranty deed conveyed his interest in and to said premises to said Frances Mann Wolff, said deed reciting that said premises were free and clear of incumbrances “except that certain mortgage of $20,000 * * * which said mortgage said second party, Frances Mann Wolff, hereby assumes and agrees to pay when due as a part of the consideration hereof.”

The executor of the will made application to the county court for a construction of paragraph 5 above quoted. The court by its judgment construed this provision of the will as a valid direction, charging the principal of said mortgage upon the general assets of the estate of said Franklin P. Mann, deceased. From such judgment the executor brings this appeal.Austin, Fehr, Mueller & Gehrz, of Milwaukee (William C. Quarles and Howard T. Foulkes, both of Milwaukee, of counsel), for appellant.

Paul D. Carpenter, of Milwaukee (Otto A. Lemke and Melville H. Sell, both of Milwaukee, of counsel), for respondent Alfred Mann.

OWEN, J. (after stating the facts as above).

The occasion calling for a construction of the will arises from the fact that subsequent to the execution thereof and prior to his death the testator by warranty deed conveyed his...