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

• Decision Date: 10 January 1933
• Citation: 210 Wis. 218,246 N.W. 306
• Parties: IN RE KENDRICK'S ESTATE. KENDRICK v. KENDRICK ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 218

246 N.W. 306

IN RE KENDRICK'S ESTATE.KENDRICK

v.KENDRICK ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1933.

Appeal from an order of the County Court of Iowa County; Aldro Jenks, Judge.

Proceeding for the construction of the will of Helen Gertrude Dahle Kendrick, deceased, for a determination of the rights of Ercell G. Kendrick, legatee, and Clara Marie Kendrick and others. From an order of the county court, Ercell G. Kendrick appeals.--[By Editorial Staff.]

Order reversed, and cause remanded, with directions.

Construction of will. The deceased, Helen Gertrude Dahle Kendrick, and the appellant, Ercell G. Kendrick, were married in January, 1920, when she was 21 years of age. During that year she inherited from her father's estate property of the value of $23,000, the bulk of which consisted of personal property. On November 17, 1920, Mrs. Kendrick executed her will. At that time she had no children. Thirteen days after the will was drawn her first child was born, and, seven years later, another. Both of her children and her husband survived her.

Mrs. Kendrick died January 15, 1930, and her will was admitted to probate in the county court of Iowa county on the 4th day of March, 1930. The inventory of her estate discloses that at the time of her death her entire estate consisted of her homestead, appraised at $4,750, and personal property, appraised at $4,186.59. It appears without dispute that the personal property was not sufficient to pay the debts and expenses of administration. The administrator with the will annexed sold the homestead pursuant to the power conferred by the will, for $5,000. He then petitioned the county court for a construction of the will and direction as to whether or not he should pay the husband his legacy of $5,000, or whether the proceeds derived from the sale of the homestead should be paid to the trustee for the benefit of the children.

The testatrix bequeathed to her mother, Anna Dahle, her personal apparel and jewelry, except such as were gifts to her from her husband, which she bequeathed to the mother of her husband. The third clause of the will is as follows:

“I give and bequeath to my husband, Ercell G. Kendrick, the sum of Five Thousand ($5,000.00) Dollars. The balance of my estate of every kind and nature, I give, devise and bequeath to the executor and trustee who shall succeed to said trust; the same, however to be held in trust by him and disposed of as follows.”

The trust was for the benefit of her children and, if her children should not survive her, for the benefit of her mother. Her brother, Otto B. Dahle, was appointed executor of the will and trustee for the children.

From an order of the county court holding that the $5,000 legacy to the husband was not a charge upon the real estate, and that the fund remaining in the hands of the executor should be paid to the trustee, the husband appeals.

Platt Whitman, of Highland, for appellant.

James E. O'Neill, of Dodgeville, for respondents.

OWEN, J.

[1][2] The county judge took the view that the will disclosed a lack of affection on the part of the wife for her husband; that at the time of the making of the will her estate consisted of...