Hase v. Radenz (In re Ehlers' Will)

• Decision Date: 18 November 1913
• Citation: 155 Wis. 46,143 N.W. 1050
• Parties: IN RE EHLERS' WILL. HASE v. RADENZ ET AL.
• Court: Wisconsin Supreme Court

155 Wis. 46

143 N.W. 1050

IN RE EHLERS' WILL.HASE

v.RADENZ ET AL.

Supreme Court of Wisconsin.

Nov. 18, 1913.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action for construction of a will. The proceeding was commenced in county court. It involved the meaning of this provision of the instrument:

“I give, devise and bequeath to my children, Mary Neunmeyer (née Ehlers), Minnie Radenz (née Ehlers), Ida Hass (née Ehlers) and Alwine Ehlers to each an undivided one-fifth part of my estate and to the children of my son, Carl Hass, whose names are Margaretha Hass, Adela Hass, Marie Hass, Paul Hass and Carl Hass, each an undivided one-tenth part of my estate.”

The petition for construction was made by Carl Hass, only child of the testator's blood. The persons remembered as her children were her step-children. There was no residuary clause as such and no devise or bequest except those mentioned in the quoted provision.

The county court decided that the will was void for uncertainty. On appeal to the circuit court that was reversed and the will sustained as bequeathing one-fifth of the estate to each of the four step-children and one-twenty-fifth to each of the grandchildren. Affirmed.Rossiter Lines, of Milwaukee, for appellant.

Froede & Bodenstab and Frank B. Van Valkenburgh, all of Milwaukee, for respondents.

MARSHALL, J.

[1][2] Much difficulty is liable to occur in initial trials, involving the construction of wills by taking some particular adjudications respecting some other wills as controlling, instead of looking to legal principles for guidance, or from following some well known rule for judicial construction as if it were applicable, universally, instead of appreciating that, in general, such rules are to be used in choosing between reasonable meanings of substantially equal dignity and keeping prominently in mind that paramount to all others, is the rule that the intention of the testator should prevail so far as it can be read out of the language used to express it. Then one is liable to go widely astray if it is not appreciated that while, primarily, it is to be presumed that a testator used language in its common ordinary and literal sense, that yields easily to the fact, in case of the fact existing from any legitimate cause, that read in such sense the meaning would be left in obscurity or found to be contrary to the testator's intention.

[3][4][5] The court has very great power which may be exercised to prevent failure of a testator's purpose, all in harmony with the rule that the legal intention of the testator is the one expressed by his language, though it may not be exactly the real intention he had in mind; that his purpose can be given vitality only so far as it can be read reasonably out of the will--but to the end that the testamentary idea may be so read the language should be examined in the light of the situation of the testator at the time he used it and all environing circumstances. If thereby the intention is plain, or the major probabilities are on the side of a particular intent, for the purpose of so reading the will as to express it, words may be given a very broad or very restrictive meaning, going to the very limit of the boundaries of reason, or may be transposed or rejected, or words not seen may be read in place which are there by reasonable or necessary inference, or may be transposed or supplied, and thus the language be moulded to express, so far as can reasonably be done, the testator's intention. True, the heir at law is to be favored, but that is a rule to aid in making a choice between reasonable meanings. True, too, ordinarily, the last clause of two which conflict, is supreme, but it has no application where the effect would be to defeat the real intent. These principles are so familiar and have been so often applied in this court that a mere statement of...