Homberger v. Jansen (In re Jansen's Will)

• Decision Date: 05 June 1923
• Parties: IN RE JANSEN'S WILL. HOMBERGER v. JANSEN.
• Court: Wisconsin Supreme Court

181 Wis. 83

193 N.W. 972

IN RE JANSEN'S WILL.HOMBERGER

v.JANSEN.

Supreme Court of Wisconsin.

June 5, 1923.

Appeal from Sauk County Court; James H. Hill, Judge.

In the matter of the estate of Hubert Jansen, deceased. From a determination of the county court, construing the will, Robert Homberger, as trustee, etc., appeals. Affirmed.L. C. Gunderson, of Madison, for appellant.

Grotophorst & Quale, of Baraboo, for respondent.

CROWNHART, J.

This case involves two questions: First, was the action of the county court a final determination of the matter from which an appeal will lie? Second, was the construction of the will by the county court proper?

[1] The county court, under date of September 27, 1922, filed a written memorandum, denominated “Opinion of the Court in Construction of Will,” setting forth the views of the court as to the proper construction of the will, and on the same day prepared and filed “Findings of Fact and Conclusions of Law,” in which the will was formally construed. Final judgment distributing the estate was entered October 31, 1922. Appeal was taken November 9, 1922, from the opinion, findings of fact, and conclusions of law of September 27, construing the will. The respondent contends that the appeal should be dismissed on the ground that the opinion, findings of fact, and conclusions of law was not a final determination from which an appeal would lie. The statute governing appeals from the county court provides as follows:

“Sec. 4031. * * * 2. In counties having a population of over fifteen thousand, in all cases not otherwise provided for, any executor, administrator, guardian, trustee, or any person aggrieved by any order, judgment, decree, determination or denial of the county court shall have the right to have the same reviewed by writ of error or appeal from the county court to the Supreme Court.”

As we view the action of the county court, its purpose was the construction of the will, and the result, however denominated, was a final determination in construing the will. It is not the form of the determination, but the nature of the adjudication, that is to be considered. Swarthout v. Swarthout, 111 Wis. 102, 86 N. W. 558. There was no occasion in the county court for findings of fact and conclusions of law as such, and it would be better practice to construe a will by formal order or decree. That is true as to all final determinations in the county court from which appeals may be taken. However, we think the appeal was properly taken in this case, and this court has jurisdiction to proceed to the merits of the case.

[2] The will construed contained two clauses which are in opposition, if the language is to be considered in its literal sense. The third clause of the will is as follows:

“I give, devise and bequeath all the rest of my property, personal and real, whichsoever and wherever same may be, to my beloved wife Susan Jansen absolutely with full power to sell at any time she may see fit.”

The fourth clause provides:

“I direct that after the demise of my beloved wife Susan...