Tousey's Will, In re
| Decision Date | 04 December 1951 |
| Citation | 50 N.W.2d 454,260 Wis. 150,27 A.L.R.2d 1228 |
| Parties | , 27 A.L.R.2d 1228 In re TOUSEY'S WILL. EBERLEIN et al. v. TOUSEY et al. |
| Court | Wisconsin Supreme Court |
Petition by Frederic C. Eberlein, guardian ad litem of Leonard E. Miller, for construction of the will of Daniel Tousey, deceased. Edward L. Aschenbrener, guardian ad litem of Jeffrey Lee Beilke, joined in said petition. From the judgment construing the will, said guardians ad litem appeal.
Daniel Tousey died, a resident of Shawano county, on December 13, 1950, leaving no wife, father or mother. He left surviving him two sons, Jeffrey Lee Beilke and Leonard E. Miller, both illegitimate; three brothers, Mason, McMullen and John Tousey; two sisters, Effie Belfeuil and Marian Welch; three nephews, Ferdinand Bogda and Melvin Bogda, sons of a deceased sister, Minerva Bogda, and Wallace Peters, son of a deceased sister Theresa Peters; four nieces, Leoris Miller, daughter of a deceased brother Charles, Hilda Hoffman and Vera Miller, daughters of a deceased sister Minerva Bogda, and Margaret Martin, daughter of a deceased sister Theresa Peters.
In his will Daniel Tousey bequeathed two certificates of the approximate value of $1500.00 to his niece, Hilda Hoffman, and his house to Mae Burr, his housekeeper. The house is located on land within the Reservation, on which he had an assignment as an enrolled Indian. The will further provided for establishment of a trust fund out of the residue of his estate, from which fund Mae Burr is to be paid $60.00 a month for life, and 'That in case of death of the said Mae Burr the balance if any to be divided among my heirs in the manner provided by law.'
The trial court held that the brothers and sisters, nieces and nephews of testator were his beneficiaries under the residuary clause of the will, and excluded the two illegitimate children.
Further facts will be stated in the opinion.
Frederic C. Eberlein, E. L. Aschenbrener, Shawano, for appellants.
Fischer, Brunner & Strossenreuther, Shawano, Ken Traeger, Gresham, for respondents.
The question involved on this appeal is whether the two illegitimate children of the testator qualify as heirs under the provision of the will that the residuary estate is 'to be divided among my heirs in the manner provided by law.'
Sec. 237.06, Stats., provides: 'Every illegitimate child shall be considered as heir of the person who shall, in writing signed in the presence of a competent witness, have acknowledged himself to be the father of such child or who shall be adjudged to be such father under the provisions of chapter 166, or who shall admit in open court that he is such father, and shall in all cases be considered as heir of his mother, and shall inherit his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock * * *.'
It is undisputed that both Leonard E. Miller and Jeffrey Lee Beilke are heirs of Daniel Tousey under sec. 237.06. The record discloses that on May 14, 1938 judgment was entered in the circuit court for Door county adjudging that Daniel Tousey was the father of Leonard E. Miller, and that on November 18, 1946 judgment was entered in the circuit court for Shawano county adjudging that Daniel Tousey was the father of Jeffrey Lee Beilke. There is no doubt, therefore, that had the decedent died intestate the two illegitimate children would inherit his estate.
It is well settled that the term 'heirs' means those to whom the law assigns intestate property. The presumption that testator used the term in that meaning is overcome only by clear evidence in the context of a different intention. Flint v. Wisconsin Trust Co., 1912, 151 Wis. 231, 138 N.W. 629; In re Will of Johnson, 1929, 199 Wis. 154, 225 N.W. 818, 70 A.L.R. 575; In re Estate of Hoermann, 1940, 234 Wis. 130, 290 N.W. 608, 128 A.L.R. 89. No such intention appears in the will. The specific bequests to Hilda Hoffman, a niece, and to Mae Burr, his housekeeper, who was not a relative--the only individuals named as beneficiaries in the will--do not indicate an understanding on the part of the testator that the term 'heirs' would include only his sisters and brothers and the children of...
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