Hohnbach v. Hohnbach

• Decision Date: 07 January 1913
• Citation: 151 Wis. 487,139 N.W. 731
• Parties: HOHNBACH ET AL. v. HOHNBACH ET AL.
• Court: Wisconsin Supreme Court

151 Wis. 487

139 N.W. 731

HOHNBACH ET AL.

v.HOHNBACH ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1913.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Joseph Hohnbach and others, by guardian, against Robert O. Hohnbach and others, for the construction of the will of Robert T. Hohnbach, deceased. From a judgment for defendants, plaintiffs appeal. Affirmed.

Marshall and Siebecker, JJ., dissenting.

On February 24, 1908, Robert T. Hohnbach died, leaving a will which was thereafter duly admitted to probate. His widow died on February 28, 1908, four days after his death. The plaintiffs herein are the minor grandchildren of the testator, and by their guardian this action is brought for the construction of the will; their contention being that the fee to the real estate is vested in them, and that the children of the testator receive but a life estate or conditional fee. The defendants, the children of the testator, contend that, having survived the testator and his widow, they take an absolute fee in the land, and that the death of the devisees referred to in the will means their death prior to the death of the testator or prior to the death of the widow. The controversy arises over the first and fifth paragraphs of the will, the material parts of which are as follows:

“First: After the payment of the expenses of my last sickness, funeral charges, expenses of administration, and all of my just debts and liabilities, I do hereby give, devise and bequeath unto my beloved wife, Lina Hohnbach, for and during the term of her natural life and widowhood, all of my property and estate of whatsoever kind and nature, and wheresoever the same may be, and in case she shall again marry, I direct that she shall take nothing under this will, but shall be entitled to all her statutory provisions.”

“Fifth: All of the rest, residue and remainder of my estate, I do hereby give, devise, and bequeath to all of my children, including my said daughter Clara, in equal shares, or to the child or children of any deceased child or children, by right of representation, but I do hereby direct that in case any of my said children shall die without leaving lawful issue them surviving, but leaving a husband or wife them surviving, as the case may be, the share or shares which are hereinbefore given to any of my said children, shall revert to my other surviving children, or the child or children of any such surviving child or children, by right of representation.”

The trial court found in favor of the defendants, and from a judgment entered in accordance with such finding plaintiffs appeal.

Emil Lenicheck, of Milwaukee, for appellants.

Lenicheck, Robinson, Fairchild & Boesel, of Milwaukee, for respondents.

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

[1] This appeal presents but a single question. The appellants insist that the words, “in case any of my said children shall die without leaving lawful issue them surviving,” apply and extend to a death at any time. Respondents contend that they were intended to apply to a death occurring during the lifetime of the testator or of the life tenant. If appellants are correct, the children after the death of their mother took a life estate only. If respondents are correct, they took the fee.

After devising a life estate to his wife during widowhood, the testator proceeds in very plain and apt language to dispose of the remainder of the estate. He says: “All of the rest, residue and remainder of my estate, I do hereby give, devise and bequeath to all of my children * * * in equal shares.” Had the will stopped here, there could be no doubt that the...