Nielsen's Will, In re
Decision Date | 07 March 1950 |
Citation | 256 Wis. 521,41 N.W.2d 369 |
Parties | In re NIELSEN'S WILL. NIELSEN, v. NIELSEN. |
Court | Wisconsin Supreme Court |
Thompson, Monk & Thompson, Racine, for appellant.
Harvey, Lawton & Harvey, Racine, for respondent.
On the first hearing pursuant to Henry Nielsen's petition for the construction of the residuary clause in the will of Cristen Nielsen, no one appeared to oppose Henry Nielsen's and his son Vernon's position that, under the provisions in that clause, the residuary estate should be divided between them; and relying on the fact that no one appeared for that purpose, Henry and Vernon Nielsen failed to introduce any evidence as to material surrounding facts and extrinsic circumstances which existed at the time of the execution of the will, and were pertinent in the construction thereof. In the absence of such evidence, the court rendered a decision contrary to the position of Henry Nielsen and his son Vernon; and upon the latter's petition, the court granted a rehearing for the construction of the residuary clause. Again no one appeared in opposition to the position of Henry and Vernon Nielsen, but they introduced evidence to establish facts upon which they based their position and contentions.
The will was executed on February 14, 1935. In the second paragraph Cristen Nielsen bequeathed $1000.00 to his brother Claus Nielsen; and the third paragraph provided: 'The rest, residue and remainder of my estate, whether real or personal and wheresoever situate, I give, bequeath and devise to my brother Henry Nielsen, Helga Neilsen, his wife, and Vernon Neilsen, their son, in equal parts, being a one-third part thereof to each.' There are no other beneficiaries named in the will. Henry Nielsen's wife, Helga, died on April 21, 1940. On April 9, 1947, the testator died. He was survived by his ten sisters and brothers, including Henry; but none of them excepting Henry appeared in the probate proceedings.
On the evidence introduced on the rehearing by Henry and Vernon Nielsen as to the surrounding facts and extrinsic circumstances in relation to the execution of the will, and particularly the provisions in the residuary clause, the court found:
'Second: That Hela Nielsen, sister-in-law of the testator died in the year 1940.
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'Fourth: That the testator intended to prefer his brother Henry, his nephew Vernon, and his sister-in-law Helga, in regard to the distribution of his property, over all of his brothers and sisters, with the exception of his brother Claus, who was given a specific bequest of One Thousand Dollars ($1000.00).
'Fifth: That the testator intended to exclude from his estate all brothers and sisters not mentioned in his will.'
Those findings were fully warranted by evidence to the following effect: When Cristen Nielsen executed the will, and when he died, he had four sisters and six brothers; five of them lived in Europe. Three of the brothers and a sister lived in Wisconsin, but except for his brothers Claus and Henry, the testator had little regard for his other brothers and sisters, and in fact had a distinct dislike for several of them.
A. neighbor, Mrs. Peterson, testified:
Mrs. Peterson's husband testified:
Leo Dam testified: 'He was asked by Cristen Nielsen to drive him to Union Grove and he took him to attorney O. R. Moyle and was present while the testator told Moyle what to put in the will.'
Attorney Olin R. Moyle testified: ...
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