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

• Decision Date: 01 May 1934
• Citation: 254 N.W. 631,215 Wis. 381
• Parties: IN RE GROTENRATH'S ESTATE. GROTENRATH ET AL. v. GROTENRATH.
• Court: Wisconsin Supreme Court

215 Wis. 381

254 N.W. 631

IN RE GROTENRATH'S ESTATE.GROTENRATH ET AL.

v.GROTENRATH.

Supreme Court of Wisconsin.

May 1, 1934.

Appeal from a judgment of the County Court of Milwaukee County; John C. Karel, County Judge.

Proceedings in the matter of the estate of Fred Grotenrath, deceased, wherein Octavia M. Grotenrath, executrix of the will of Edward W. Grotenrath, deceased, filed a petition to construe the will of Fred Grotenrath, deceased. From a judgment construing the will, Fred J. Grotenrath and others, executors etc., appeal.--[By Editorial Staff.]

Judgment affirmed.

Petition by Octavia M. Grotenrath, executrix of the will of Edward W. Grotenrath, deceased, to construe the will of Fred Grotenrath, deceased, who died on March 15, 1923. From a judgment construing said will, entered November 1, 1933, the executors of the will of Fred Grotenrath appealed.

On October 14, 1933, pursuant to the provisions of section 310.11, the petitioner Octavia M. Grotenrath, as executrix of the will of Edward W. Grotenrath, filed her petition in the county court of Milwaukee county, requesting that the will of Fred Grotenrath, deceased, be construed. The will first gave all of his real and personal property to his wife for life. It next gave specific cash bequests to each of his daughters. It then provided:

“Third. I give all the rest of my estate to my four sons, in equal shares.

Fourth: In case of death of any of my children the respective share is to be given to the respective grandchildren, if any, otherwise to my other children, in equal shares. The interest of a share of which a minor grandchild may become possessed shall be applied to the support and education of such minor.”

The county court construed the fourth paragraph of the will as though it read:

“In case of the death of any of my children, during my lifetime the respective share is to be given to the respective grandchildren, if any, otherwise to my other children, in equal shares. The interest of a share of which a minor child may become possessed shall be applied to the support and education of such minor”

--and adjudged that such was the meaning of the will and the intention of the testator.

Edward W. Grotenrath died on June 13, 1933, leaving him surviving the petitioner as his sole heir at law. The widow of Fred W. Grotenrath is still living.Hugo J. Trost and Cosmas B. Young, both of Milwaukee, for appellants.

Alvin M. Strnad, of Milwaukee (Harry M. Silber, of Milwaukee, of counsel), for respondent.

NELSON, Justice.

The appellants first contend that since the widow of Fred Grotenrath is still living and no distribution of the estate may presently be made, the petition for construction was prematurely made and therefore the court should have declined to construe the will.

[1][2][3] It is generally held that courts will not ordinarily construe provisions of a will where no present payments of income are to be made or where the time has not arrived for distribution of the principal, In re Klumpf's Estate, 95 Misc. 436, 158 N. Y. S. 1094; that courts will not ordinarily render advisory opinions where the questions propounded have not arisen and may never arise, Searls v. Charitable Baptist Society, 30 R. I. 478, 76 A. 160; and that in the absence of some exigency courts will not predetermine questions that may arise in the future under a state of facts which may be different from those which exist or may with certainty be anticipated, Goddard v. Brown, 12 R. I. 31.

[4] The question to which the petition for construction of the will gave rise is whether the estate, subject to the life estate of the widow and the bequests to the two daughters, vested in the four sons share and share alike upon the death of Fred Grotenrath. If it did so vest, then a one-fourth share thereof is now subject to an inheritance tax based upon the present value of such vested remainder, section 72.15 (4), (5). It is presently important to the estate of Edward W. Grotenrath that that question be decided to the end that any inheritance tax due from the estate may be determined and paid without unnecessary penalty. We hold that the petition was not prematurely made.

[5][6][7] The appellants next contend that no interest in the estate vested in the four sons, of which Edward Grotenrath was one, at the time of the death of Fred Grotenrath and that no interest in said estate will vest in them prior to the death of his widow. In construing wills, all rules of construction yield to the cardinal rule that the language of a will should be so construed as to give effect to the intention of the testator if that intention may be ascertained from the language of the will itself, considered in the light of the surrounding...