Klinkert's Will, In re

• Decision Date: 28 June 1955
• Citation: 270 Wis. 362,71 N.W.2d 279
• Parties: In re WILL of Frank KLINKERT, Deceased. Robert K. WILLIAMS et al., Appellants, v. FIRST NATIONAL BANK AND TRUST CO. OF RACINE, as executor, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 279

71 N.W.2d 279 270 Wis. 362 In re WILL of Frank KLINKERT, Deceased.
Robert K. WILLIAMS et al., Appellants,
v.
FIRST NATIONAL BANK AND TRUST CO. OF RACINE, as executor, et
al., Respondents. Supreme Court of Wisconsin. June 28, 1955.

[270 Wis. 364] Benson, Butchart, Haley & Benson, Racine, for appellants.

Flynn, Greenquist & De Mark, Racine, for respondents.

BROADFOOT, Justice.

At the hearing upon the petition the attorneys for the widow urged, and the trial court, with some reluctance, determined, that this case is governed by the decisions of this court in In re Estate of Gray, 265 Wis. 217, 61 N.W.2d 467 and In re Will of Hipsch, 265 Wis. 446, 62 N.W.2d 18. In the Gray case appeared the following provision for the widow [265 Wis. 217, 61 N.W.2d 468]:

"I herewith give, devise, and bequeath unto my wife, Mildred Gray, the share of my estate which she would receive under the law if I died intestate."

This provision was followed by a residuary clause in favor of sisters of the testator. In the Hipsch case the following provision was made for the widow:

"I give, devise and bequeath to my wife, Marie Hipsch, such homestead and dower rights in all of the real estate of which I may die seized as she would have if I had died intestate."

This provision was followed by a residuary clause. In the Gray case a majority of this court determined that the provision for the widow was not ambiguous; that it effectively disposed of the entire estate and there was only found to be ambiguity by the trial court by resort to the testimony of the scrivener of the will. That testimony had been given under objection by the widow and this court held that the same was inadmissible. In the Hipsch case also it was determined that the provision for the widow, standing alone, was not ambiguous.

[270 Wis. 365] The distinction between the two cases cited and the present case is that here the provision for the widow is ambiguous. In the provision for the widow the testator first provided that she should take under the laws of descent, which technically refer only to real estate. He then uses the words 'statutory share' twice. In our opinion

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this brings this case within the rule of In re Will of Pfeiffer, 231 Wis. 117, 285 N.W. 432. In the Gray case, supra, this court distinguished the Pfeiffer case as follows:

'The opinion of this court in the case of [In re] Will of Pfeiffer * * * is illustrative of a true construction of language of a will, as distinguished from...