Radoll v. Hoppe (In re Ziehlke's Will)
Decision Date | 07 March 1939 |
Citation | 284 N.W. 497,230 Wis. 574 |
Parties | In re ZIEHLKE'S WILL. RADOLL et al. v. HOPPE et al. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the County Court of Milwaukee County; M. S. Sheridan, Judge.
Reversed, with directions.
The matter came on for hearing upon the separate petitions of Alma Radoll, Martha Dettmann, Elsie Tobin, Erwin Karnowski, and Julia Koenig, nieces and nephews of Emil Ziehlke, for construction of the will, and upon petition of William Herrmann, claimant under the residuary clause of the will for construction of the will and assignment to him of the legacy claimed. Objections to the first set of petitions were made by William Herrmann, and to the Herrmann petition by the heirs at law of deceased. A hearing was duly had, evidence taken, and the court entered judgment on June 1, 1938, construing the will and determining that the claimant William Herrmann was described by the fourth clause of the will and entitled to receive as legatee under that clause. The petitioners Martha Dettmann, Elsie Tobin, Alma Radoll, Erwin Karnowski, and Julia Koenig appeal from this judgment. The material facts will be stated in the opinion.
Wiener & Wiener, and Ronald A. Padway, all of Milwaukee, and Bachhuber & Bachhuber, of Wausau (Corrigan & Backus, of Milwaukee, of counsel), for appellants.
John S. Barry, of Milwaukee (Jerome F. Treis, of Milwaukee, of counsel), for respondents.
The question upon this appeal relates to the construction of the fourth paragraph of the will, which reads as follows:
Because of certain contentions made with respect to the construction of this clause, it is advisable also to note the contents of the fifth paragraph of the will, which reads as follows: “Fifth: For reasons known to all, it is my will and I hereby direct that no part of my estate shall go to any of my nieces or nephews.”
The contentions of the heirs are, (1) that the fourth paragraph of the will was void for uncertainty; (2) that the evidence did not qualify William Herrmann as the unnamed beneficiary of the fourth paragraph; and (3) that the residue of the estate descended to petitioners as sole heirs at law for the reason that the residuary clause failing, it descends as intestate property.
In the view that the court takes of this case it will only be necessary to consider the second contention. With respect to this it is our conclusion that the evidence does not qualify William Herrmann as the unnamed beneficiary of the fourth paragraph of the will. We consider it unnecessary elaborately to consider here various rules of construction that are not seriously in question. The proper construction of the fourth clause may be more easily made clear if preceded by a fairly detailed statement of the facts and circumstances concerning the testator.
Testator was born in 1878. For some years he acted as bailiff in the civil court. He retired from active service in 1926 because of ill health, having suffered from rheumatism for some years. The will was executed January 22, 1934. William Herrmann, the claimant, 59 years of age, was born at 1615 South 4th Street, Milwaukee, and was a moulder at the Chain Belt Company. He was not related to Ziehlke, but the two had been acquainted since 1893, when they had worked in the same plant. In 1926, Ziehlke rented the rear rooms in Herrmann's house, and from that time until his death lived and kept house there. He was unmarried. The rooms rented by Ziehlke had a separate entrance, and until 1936 were completely separate from the rest of the house. After that date the doorway between Ziehlke's apartment and the balance of the house was left open. After quitting the civil court Ziehlke had no occupation. He was sick for some time in 1932, about two years prior to the execution of the will, and Herrmann's sister, who then lived with him, prepared his meals during that time. Thereafter, he was able to get about although somewhat afflicted with...
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