Nielsen v. Nielsen (In re Nielsen's Will)

• Decision Date: 07 March 1950
• Citation: 41 N.W.2d 369,256 Wis. 521
• Parties: In re NIELSEN'S WILL. NIELSEN v. NIELSEN.
• Court: Wisconsin Supreme Court

256 Wis. 521

41 N.W.2d 369

In re NIELSEN'S WILL.NIELSEN

v.NIELSEN.

Supreme Court of Wisconsin.

March 7, 1950.

Proceedings for the probate of the will of Cristen Nielsen, deceased, wherein Henry Nielsen was appointed executor and filed a petition for the construction of the residuary clause of the will in which he was joined by Vernon Nielsen.

The County Court, Racine County, J. Allan Simpson, J., entered a judgment construing the residuary clause, and Vernon Nielsen appealed.

The Supreme Court, Fritz, C. J., held that the evidence sustained the trial court's findings that the testator intended to prefer the three residuary legatees named in will in regard to the distribution of his property over all of his brothers and sisters with the exception of one brother and that testator intended to exclude from his estate all brothers and sisters not mentioned in will and that therefore interest devised to residuary legatee who predeceased testator would pass to the surviving residuary legatees and would not pass to the testator's heirs at law.

Judgment reversed and cause remanded with directions.

Thompson, Monk & Thompson, Racine, for appellant.

Harvey, Lawton & Harvey, Racine, for respondent.

FRITZ, Chief Justice.

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.

* * *

‘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: ‘When the testator lived alone, his sister-in-law Helga went up and helped him with his housework sometimes; she washed and cooked things for him, mended his clothes, and baked and helped him whenever he needed help, and he thought a great deal of her. Henry and Cristen were real brothers, and he thought as much of Vernon as if he had been his own boy. The testator and Henry Nielsen and his family were living as one family for many years, first on the Tucker farm, and then about eight years on the Rowland Lee farm, and Vernon Nielsen visited his uncle quite often. The testator said that his other brothers and sisters never did anything for him so he did not care to have much to do with them.’

Mrs. Peterson's husband testified: ‘He knew the testator for thirty years. When testator lived alone he did his own housework except when he had to have a good clean-up. Helga would come over there and clean him up once a week. She washed for him, canned for him, and everything just like a wife. He thought a great deal of what she did for him. Henry and the testator were very close and this feeling lasted throughout the time we knew them. I never saw two brothers closer than Henry and Cristen. The feeling existed both while they farmed together and after they separated their farms. Testator did not have a car and so Henry would come over and pick him up. He did not like Paul; I heard him say that Paul skinned him. They did not seem to hitch at all. He had no good feelings toward his other brothers and sisters. Testator would come over and talk about the disposition of his property on his death. If there would be anything left, Henry and his wife and the boy should have it. Testator felt as though Vernon were his own, and he felt the same toward Helga. He liked his brother Claus, but the rest they were blank. We visited back and forth frequently and I never heard him say anything harsh about the Henry Nielsen family.’

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...