Pfeiffer's Will Guerin v. Uphoff

• Decision Date: 11 April 1939
• Citation: 231 Wis. 117,285 N.W. 432
• Parties: In re PFEIFFER'S WILL GUERIN v. UPHOFF.
• Court: Wisconsin Supreme Court

231 Wis. 117

285 N.W. 432

In re PFEIFFER'S WILLGUERIN

v.UPHOFF.

Supreme Court of Wisconsin.

April 11, 1939.

Appeal from a judgment of the County Court of Milwaukee County; M. S. Sheridan, Judge.

Affirmed.

Proceeding by Freeman H. Guerin, executor of the estate of Johanna Pfeiffer, deceased, against Herbert S. Uphoff, executor of the estate of William H. Pfeiffer, deceased, for a construction of the will of William H. Pfeiffer, deceased. From a judgment construing the will, Freeman H. Guerin, as executor, appeals.-[By Editorial Staff.]

Affirmed.

Petition of Freeman H. Guerin as executor of the will of Johanna Pfeiffer, deceased, for a construction of the will of William H. Pfeiffer, deceased. From a judgment construing said will, entered November 17, 1938, Freeman H. Guerin, as executor, appealed. All of the facts will be stated in the opinion.

Russell A. Clark, of Milwaukee (Ernst Von Briesen, of Milwaukee, of counsel), for appellant.

Henry Lockney, of Waukesha, and Herbert C. Bartelt, of Milwaukee (Bendinger, Hayes, Kluwin & Schlosser, of Milwaukee, of counsel), for respondent.

NELSON, Justice.

William H. Pfeiffer died on June 27, 1934, leaving a last will and testament which was thereafter admitted to probate. He left surviving him his widow, Johanna Pfeiffer, as his sole heir at law. Johanna Pfeiffer was William H. Pfeiffer's second wife. She married him in 1921, and continued to reside with him until his death. She died in January, 1935, at the of about sixty-four years. It appears from her petition for widow's allowance, dated November 1, 1934, that she had been in poor health for more than a year, had suffered severely from neuritis during all of that time, had been confined to her bed from time to time and had required medical attention at least once every week. The will of William H. Pfeiffer, deceased, which was construed by the court, was dated April 24, 1933. It was drawn by a layman and was found to have been properly executed. William H. Pfeiffer left an estate, appraised at $48,952.24. The estate consisted of his homestead, appraised at $10,000, but subject to a mortgage of $6,000, other real estate appraised at $38,000 and personal property appraised at $952.24. The will, after first providing for the payment of his just debts, expenses of his last sickness and funeral provides:

“Second. I give, devise and bequeath unto my wife, Johanna Pfeiffer, all that part of my estate which would legally go to her according to the statutes provided therefor.

“Third. All the rest, residue and remainder of my estate shall be divided into seven equal shares, as follows: One share to go to my sister, Lydia Yoost; one share to my sister, Annie Pfeiffer; one share to my sister, Katherine Uphoff; one share to be divided among the heirs of my deceased brother, John Pfeiffer; one share to be divided among the heirs of my deceased brother, Gottlieb Pfeiffer; one share to be divided among the heirs of my brother, Charles Pfeiffer, and the remaining share to be divided among the heirs of my brother, George Pfeiffer.”

The county court concluded:

“One. That it was the intent of the testator as set forth in his said will, to give to his widow, Johanna Pfeiffer, only such interest in and portion of his estate as she would take under the statutes of the state of Wisconsin had testator died intestate, leaving children surviving him.

“Two. That it was the intention of the testator, as set forth in his said will, that all the rest, residue and remainder of his estate, after so providing for the widow, should be divided into seven equal shares, one share to go to each of three surviving sisters mentioned in said paragraph third, and one share to the surviving children of each of the four deceased brothers mentioned in said paragraph third; that it was not the intention of the testator that the surviving widows of such deceased brothers, or any of them, should take an interest therein and they took no interest therein.”

The executor of the will of Johanna Pfeiffer, deceased, contends that the court erred in so construing the second and third paragraphs of the will. In support of his assignments of error he contends that under the second paragraph Johanna Pfeiffer, as surviving widow, took all of the estate since she was his sole heir at law. Secs. 237.01, 237.02 and 318.01(1), Stats. Under those sections Johanna Pfeiffer, as widow, had there been no will, clearly would have taken the entire estate.

All of the persons mentioned in the third paragraph of the will contend that it was the intention of the testator to give to his widow only a part of his estate and the residue in equal one-seventh shares, to his three sisters and to the heirs respectively of his four deceased brothers.

[1] We have often said that “in construing wills, all rules of construction yield to the cardinal rule that the language of a will should be so construed as to give effect to the intention of the testator if that intention may be ascertained from the language of the will itself, considered in the light of the surrounding circumstances.” Will of Grotenrath, 215 Wis. 381, 254 N.W. 631, 633;Will of Fouks, 206 Wis. 69, 238 N.W. 869;Will of Richter, 215 Wis. 108, 254 N.W. 103, and other cases cited in those opinions. The surrounding circumstances are rather limited. Johanna Pfeiffer was a second wife. She, however, lived with William H. Pfeiffer for a period of about thirteen years. No child was born of the marriage and none adopted. In 1934, the widow was sixty-four years of age. On November 1, 1934, which was about four months after the death of her husband, she applied for a widow's allowance. It appears from the petition that she was in poor health, that she had suffered severely from neuritis for more than a year and had been confined to her bed from time to time as a result of her affliction. At the time the will was executed the testator, of course, knew that his wife was his sole heir at law.

It is clear from the will that the testator intended to devise and bequeath to his wife only a part of his estate and the residue thereof to his sisters and the heirs of his deceased brothers. He gave to his wife “all that part” of his estate and “all the rest, residue and remainder” to his relatives mentioned in the third paragraph.

The precise question for decision is: What did the testator intend by the language: “All that part of my estate which would legally go to her according to the statutes provided therefor”? It is clear that he intended that she should have only a part of his estate and that that part was such as would legally go to her according to the statutes provided therefor. Sec. 2307.01, provided in part:

“When any person shall die seized of any lands, tenaments or hereditaments or any right thereto or entitled to any interest therein, in fee simple or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts, except as provided in section 237.02, in the manner following: ***

“(2) If he shall leave no lawful issue, to his widow; ***.”

Sec. 237.02, in part, provides:

“Homestead, how to descend. When the owner of any homestead shall die, not having lawfully devised the same, such homestead shall descend, free of all judgments and claims against such deceased owner or his estate except mortgages lawfully executed thereon and laborers' and mechanics' liens, in the manner following:

“(1) If he shall have no lawful issue, to his widow.”

Sec. 318.01 (1) provides as follows: “Distribution of personalty. (1) Residue. The residue, if any, of the personal estate of any intestate and the residue of the personal estate of a testator, not disposed of by his will and not required for the purposes mentioned in section 313.15, shall be distributed in the same proportions, and to the same persons, and for the same purposes, as prescribed for the descent and disposition of real estate in chapter 237, except that when the deceased shall leave a widow and lawful issue and widow shall be entitled to receive the same share of such residue as a child of such deceased, when there is only one child, and in all other cases one-third of such residue.”

When the testator made his will did he have in mind that the statutes just recited should be operative? They are obviously applicable to lands and a homestead not lawfully devised and to personal estate not disposed of by will. Since the testator did make a will and clearly intended to devise his lands and to dispose of his personal estate, it cannot, in our opinion, be held that he had in mind those statutes which are operative as to lands and personal estate not devised or disposed of by will and he therefore could not have intended that all of his estate would go to his widow.

Sec. 233.13, Stats.1933, provides: “Election between dower and devise. If any lands be devised to a woman or other provision be made for her in the will of her husband she shall make her election whether she will take the lands so devised or the provision so made or whether she will claim the share of his estate provided in section 233.14; but she shall not be entitled to both unless it plainly appears by the will to have been so intended by the testator.”

Sec. 233.14, Stats.1933, provides: “When deemed to have elected to take devise, etc. When a widow shall be entitled to an election under either sections 233.12 and 233.13 she shall be deemed to have elected to take such jointure, devise or other provision unless within one year after the filing of a petition for the appointment of an administrator of the estate or for the probate of the will of her husband she file in the court having jurisdiction of the settlement of his estate notice in writing that she elects to take the provisions made for her by law instead of such jointure, devise or other provision; and upon filing such notice she shall be entitled to the same dower in his lands and the same right to the homestead as if ...