Reichenberger's Estate, In re

• Decision Date: 07 February 1956
• Citation: 272 Wis. 176,74 N.W.2d 740
• Parties: In re ESTATE of Maria REICHENBERGER, Deceased. Mary GUENTHER, etc., Appellant, v. Edward A. BINDER, Executor, Respondent.
• Court: Wisconsin Supreme Court

Page 740

74 N.W.2d 740

272 Wis. 176

In re ESTATE of Maria REICHENBERGER, Deceased.

Mary GUENTHER, etc., Appellant, v. Edward A. BINDER, Executor, Respondent.

Supreme Court of Wisconsin.

Feb. 7, 1956.

Williams, Williams & Meyer, Oshkosh, for appellant.

Keefe, Patri, Stillman & Nolan, William E. Crane, Oshkosh, for respondent.

BROWN, Justice.

Mrs. Reichenberger died testate December 8, 1953. By her will she bequeathed $200 to her granddaughter, Anna, $100 to her daughter, the appellant Mary, and $100 to her great grandson, David. All the residue of the estate was bequeathed to her son, Michael. The will was witnessed by two persons, one of whom was Michael's wife. The trial court recognized that sections 238.08 and 238.09, Stats., are applicable. They read:

'Witnesses to will not to take under it. All beneficial devises, legacies and gifts whatsoever, made or given in any will to a subscribing witness thereto, or to the husband or wife of a subscribing witness thereto, shall be wholly void unless there be two other competent subscribing witnesses to the same; but a mere charge on the lands of the devisor for the payment of debts shall not prevent his creditors from being competent witnesses to his will.

'When devise to witness saved. But if such witness or the husband or wife of such witness, to whom any beneficial devise may have been made or given, would have been entitled to any share of the estate of the testator in case the will was not established, then so much of the share that would have descended or been distributed to such witness or to the husband or wife of such witness as will not exceed the devise or bequest made to him in the will shall be saved to him, and he may recover the same of the devisees or legatees named in the will, in proportion to and out of the parts devised or bequeathed to them.'

The distributable estate is $6,082.15, all in cash. Testatrix's daughter, Mary, and her son, Michael, are her only heirs-at-law.

The controversial part of the final judgment is:

'That the residue of said personal estate consisting of the money, goods, chattels, rights and credits aforesaid be and the same is hereby assigned as follows: $200.00 to Anna Guenther (Anna Drexler) granddaughter; $100.00 to Mary Guenther, daughter; $100.00 to David Guenther, great-grandson, pursuant to Paragraph Second of decedent's will;

'That by reason of Eleanor Reichenberger, wife of Michael Reichenberger, being a subscribing witness to decedent's will, the share which shall be assigned to Michael Reichenberger by reason of Paragraph Third of said will shall be $3041.07, being the share which would have descended or been distributed to said Michael Reichenberger if the will had not been established;

'That all of said residue in excess of $3041.07 which would otherwise be assigned pursuant to Paragraph Third, the residuary clause of said will, being not effectively disposed of by the will of said testatrix, shall be distributed as provided in Section 318.01 Wisconsin Statutes, in equal shares, to the children of said testatrix: Michael Reichenberger and Mary Guenther, to each a one-half part thereof.'

The appellant, Mary, objects to dividing the excess residue with Michael, as adjudged by the last paragraph of the judgment, supra.

By section 238.08, Stats., the bequest of residue to Michael is void. By section 238.09, Stats., Michael, as an heir-at-law, may still take a share of the estate, as though there had been no will, providing that what is so taken does not exceed the bequest made him in the will.

Some confusion may have been produced by the heading of subd. 238.09, 'When devise to witness saved.' In 1849...