Hillman v. McLeod (In re Marshall's Will)

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtROSENBERRY
Citation239 Wis. 162,300 N.W. 157
PartiesIn re MARSHALL'S WILL. HILLMAN v. McLEOD et al.
Decision Date02 December 1941

239 Wis. 162
300 N.W. 157

In re MARSHALL'S WILL.
HILLMAN
v.
McLEOD et al.

Supreme Court of Wisconsin.

Oct. 7, 1941.
Rehearing Denied Dec. 2, 1941.


Appeal from an order of the County Court for Chippewa County; Dayton E. Cook, Judge.

Proceeding in the matter of the will of Roujet D. Marshall, deceased, by William Hillman, petitioner, against Arthur A. McLeod and others, executors, and others, wherein petitioner filed a petition asking that the county court direct executors to account to petitioner for the value of portions of a specific devise and legacy of which petitioner was deprived by an election filed by deceased's widow, and for other relief. From an order dismissing the petition, petitioner appeals.-[By Editorial Staff.]

Affirmed.

William Hillman of the Town of Delton, Sauk county, on the 31st day of May, 1940, filed his petition in the county court for Chippewa County, asking: (1) That the court direct the executors to account to the petitioner for the value of the portions of the specific devise and legacy of which he was deprived by the election filed by the widow of said deceased, together with all earnings, increase and profits thereon from the date of the filing of such notice

[300 N.W. 158]

of election. (2) That all funds relinquished by the said Mary E. Marshall, as widow of the deceased, under the provisions made for her in said last will and testament, be held in trust by said executors for the purpose of satisfying the provisions made for petitioner in said last will and testament, and to compensate him for the loss sustained by reason of the election of said Mary E. Marshall. (3) That the executors be adjudged to be indebted to the petitioner here in an amount equal to one-third of the value of the specific devise and specific legacy provided for the petitioner. (4) That said executors be directed to make immediate payment to the petitioner of such sums as may be found by the Court to be due him under the provisions of the said will.

The respondents answered and alleged in defense: (1) That the total value of the estate as per the inventory filed in the county court November 10, 1922, was $817,491.53; the real estate, both foreign and domestic, being appraised at $278,510. (2) That the devise and bequest to William Hillman in said will is the same as set forth in said petition and the inventory value of said devise and bequest are as therein set forth. (3) The provision for the widow is set out and the fact that she elected within one year after the death of the testator, to take according to law is alleged. (4) That by said election the widow became entitled to one-third of the net personal estate of the deceased; that pursuant to orders of the court the executors settled for one-third by paying her one-third out of the residual personalty of the estate. (5) That by said election said widow claimed a dower interest in all the real estate, including that not specifically devised by the will; that a large share of the residuary realty was western timber land and the executors settled with the widow for her interest in said timber land by purchasing her interest for the sum of $20,000; that the widow retained her dower interest in the Wisconsin lands; that all of the personalty belonging to the estate was thereafter distributed as rapidly as possible with the exception of assets that are non-revenue producing; that there remain in the estate assets of the inventory value of $116,595.62, the estimated liquidating value of which is $74,990.90.

Upon the issue made by the petition and answer a trial was had, and the following facts appear substantially without dispute. The will was executed by the deceased, February 4, 1921, and made the following testamentary dispositions:

(1) To his wife, Mary E. Marshall, the homestead, a $2,000 annuity and $25,000 in cash or securities. These provisions were to be preferred over all other devises or bequests and to be free of inheritance taxes.

(2) To his sister, Rose Jenkins, the Union Block in Chippewa Falls.

(3) To his nephew, Leon Marshall, a bequest of stock and what was known as the Marshall Flats.

(4) To Guy House, “if he survive me and be in my employ at the time of my decease,” a farm in Sauk County.

(5) To William Hillman, “if he survive me and be in my employ at the time of my decease,” the home farm in Sauk County and personalty thereon. “This devise and bequest to William Hillman is subject to the use by my brother William for life of the house, now occupied and used by him, with the right to have a stock of firewood delivered to him from the farm as usual, and to have the benefit of water and light at his home as he has been accustomed to have.”

(6) The testator then provided for several cash legacies ranging from $500 to $5,000, directions as to printing his autobiography and securing oil portraits and provisions for a monument.

Paragraph Twelfth was as follows: “All the rest of my property and all lapsed devises and bequests I will to my executors in trust to convert the same into good interest bearing securities as soon as practicable in their judgment, they to have all powers necessary or convenient therefor, including the making of conveyances which may be appropriate in order to execute their trust.”

“Thirteenth: I will that said executors pay the income of the invested fund, less the expense of executing the trust, other than their compensation, which I direct to be paid out of the corpus of the fund or estate, to my wife, so long as she shall live and then to distribute the trust fund as follows:

“One-sixth to the surviving children of Rosa Jenkins, Walter Jenkins and Frank Jenkins;

“One-sixth to Leon Marshall, Rollin Marshall and the surviving children of Forest Marshall;

[300 N.W. 159]

“One-sixth to Arthur A. McLeod, ‘in recognition of his fidelity to me and assistance in conserving my property’;

“One-sixth to the Trustees of Lawrence College to create the R. D. Marshall Fund;

“One-ninth to Chippewa Falls, Wisconsin, to create the R. D. Marshall Library Fund;

“One-ninth to the Town of Delton, Sauk County, to create the R. D. Marshall Town House and Library Fund; and

“One-ninth to St. Joseph's Hospital, Chippewa Falls, to create the R. D. Marshall Hospital Fund.”

The widow's statutory one-third interest in the personalty was determined to be $150,299.37, and this amount was paid to her out of the residual personalty.

The devise to Rosa Jenkins was inventoried at $47,500; the devise to Leon Marshall was inventoried at $24,750; the devise to Guy House at $8,700; and the devise to William Hillman at $48,245.

On March 15, 1924, the widow sold her dower interest in the farm to William Hillman for $10,000. She also sold her dower interest to Rosa Jenkins for $5,000 and her dower interest to Leon Marshall for $5,000. There is no evidence as to the disposition of her dower interest in the farm devised to Guy House.

The assets remaining in the residuum at the time of the hearing consisted of the Tillamook Timber Tract in Oregon appraised in the inventory at $28,000.; the Soda Creek Timber Tract in California appraised in the inventory at $43,709.92; South Dakota land, on which the testator had a mortgage which was foreclosed by the executors, appraised in the inventory at $17,753.97; Wisconsin realty appraised in the inventory at $17,113.33; defaulted bonds appraised in the inventory at $11,118.40 and cash in the sum of $2,090.90.

In 1927, the executors sold the residual farm land in Sauk county to the petitioner. In December, 1935, at the request of the petitioner, the executors petitioned the court to assign the Wisconsin realty and an interlocutory judgment assigning the farm, two-thirds to William Hillman, the petitioner, and one-third to Mary E. Marshall, was entered on January 7, 1936.

The estate has not been closed, the time for closing the same having been extended by orders of the county court upon petition of the executors.

Mary...

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