Rosnow's Will, In re

• Decision Date: 09 October 1956
• Citation: 273 Wis. 438,78 N.W.2d 750
• Parties: In re WILL of Wm. ROSNOW, Deceased. Arthur ROSNOW, Ex'r, Appellant, v. Leonard ROSNOW et al., Respondents.
• Court: Wisconsin Supreme Court

Page 750

78 N.W.2d 750

273 Wis. 438

In re WILL of Wm. ROSNOW, Deceased.

Arthur ROSNOW, Ex'r, Appellant, v. Leonard ROSNOW et al., Respondents.

Supreme Court of Wisconsin.

Oct. 9, 1956.

Eberlein & Eberlein, Shawano, for appellant.

N. E. Wiese, Clintonville, Zwickey & Zwickey, Clintonville, of counsel, for respondents.

BROWN, Justice.

The appellant submits that persons expressly disinherited are disqualified from receiving any part of the estate under any theory and, preferably, the entire residue should be assigned to the only surviving individual mentioned in the residuary clause; that is, Arthur. Or, less desirable but still acceptable, Meta's share of the residue should be distributed among the next-of-kin who have not been disinherited by the will. He relies mainly on In re Will of Nielsen, 1949, 256 Wis. 521, 41 N.W.2d 369, in which we gave great consideration to extrinsic facts and circumstances and reached a conclusion that the death of one of the residuary heirs did not result in a lapsed legacy but brought into effect a presumed wish of the testator's that some, but not all, of his heirs-at-law should divide the residue though there were no express terms of the will excluding any of them. The extrinsic considerations in In re Will of Nielsen, supra, seem now to be much less persuasive to the result then reached than they did when the case was determined. On the other hand, In re Will of Ziehlke, 1939, 230 Wis. 574, 284 N.W. 497, which is not referred to in the Nielsen opinion presents the same problems as the case at bar and disposes of them according to what we consider must be the ruel when, by lapse of a legacy a partial intestacy has occurred. In Ziehlke, paragraph Fourth described a residuary legatee but no person fulfilled the description when the testator died. There was a residue for division and there were nieces and nephews who were heirs-at-law but it was contended that they could not share in the division because of a paragraph in Mr. Ziehlke's will reading:

'Fifth: For reasons known to all, it is my will and I hearby direct that no part of my estate shall go to any of my nieces or nephews.'

Mr. Justice Wickhem spoke for the court, saying:

'The trial court appears to have been impressed by the fifth clause in which the testator disclosed a positive intention that his nieces and nephews take nothing under his will. The answers to this are, (1) that they do not take under the will, and (2) that this paragraph throws no light...