Uihlein's Will, In re

• Decision Date: 03 July 1953
• Citation: 59 N.W.2d 641,264 Wis. 362
• Parties: , 38 A.L.R.2d 961 In re UIHLEIN'S WILL. UIHLEIN et al. v. UIHLEIN.
• Court: Wisconsin Supreme Court

Page 641

59 N.W.2d 641

264 Wis. 362, 38 A.L.R.2d 961

In re UIHLEIN'S WILL UIHLEIN et al. v. UIHLEIN.

Supreme Court of Wisconsin.

July 3, 1953.

These are four separate appeals from several parts and all of an interlocutory judgment entered September 22, 1952, in the county court of Milwaukee county, entitled 'Order Determining Federal Estate Taxes Not to be Deducted from Widow's Share under sec. 233.14 Wis.Stats. and Construing Will'.

George Uihlein, a resident of Milwaukee county, died testate May 20, 1950, leaving an estate appraised in excess of $7,000,000. He was survived by his widow, Frances L. Uihlein, but left no children or issue of any deceased child. He left surviving two sisters, and various nephews and nieces, and descendants of nephews and nieces. His last will and codicil thereto were admitted to probate on the petition of his widow filed May 25, 1950. On May 24, 1951, the widow filed her election, pursuant to sec. 233.14, Stats., to take under the law instead of under the will.

The last will of the deceased devised and bequeathed the homestead, together with all automobiles, jewelry, objects of art, and other miscellaneous items to the widow, Frances L. Uihlein. Then, after making specific bequests to employees, and St. Mary's Hospital, and providing for the payment of estate, inheritance, and other transfer taxes out of the residue of his estate, the remaining residue was set up into two trusts, both of which were to be for the benefit of the widow, Frances L. Uihlein, during her lifetime, for the purpose of paying to her the sum of not less than $5,000 per month out of Trust No. One and the net balance of income out of Trust No. Two yearly. The will further provided that upon the death of said Frances L. Uihlein said trusts were to terminate, and distribution was to be pursuant to paragraph Fifth of the will as follows:

'Fifth

'(b) Upon the death of my wife Frances L. Uihlein, both Trust estate No. One (1) and number Two (2) known as the George Uihlein Investment Trust and George Uihlein Marine Trust, shall cease and terminate, and the Trustees of both Trust estates shall distribute the funds held by them in fractional parts as enumerated below, to the following persons or their lineal descendants 'per Stirpes' excepting therefrom adopted children, and also excepting Henry Uihlein, if he has predeceased me, as may be living at the date of the death of Frances L. Uihlein, which will be the date of the termination of both Trust estates.

'One-fifth (1/5) thereof to Henry Uihlein, New York, N. Y., if he be living at the time of my death, and if not living at the time of my death then his share shall lapse, and shall be divided equally, share and share alike, among the remaining members of this group, or their lineal descendants, excepting therefrom adopted children, and Hugh McMillan, Jr., and Joan McMillan.

'One-fifth thereof to H. Robert Stoepel, Grosse Point Park, Michigan.

'One-fifth thereof to Helen Rohnert Stoepel, Grosse Point Park, Michigan.

'One-fifth thereof to L. james Bulkley, Grosse Point Park, Michigan.

'One-tenth thereof to John H. Kopmeier, Milwaukee, Wisconsin.

'To Hugh McMillan, Sr., in Trust however for the use and benefit of his two children, Hugh McMillan, Jr., and Joan McMillian, residing at #5 Woodland Place, Grosse Point (30) Michigan, I do give and bequeath the sum of Five Thousand Dollars ($5,000.00) each, and I direct said Trustee to use the corpus and income from said estate for the education and general welfare of said children. When the said children attain the ages of Thirty (30) years each, the trust created herein for said child shall cease, and any balance remaining in the hands of said Trustee shall be paid to said child, who has now grown to full manhood and womanhood.

'In the event of the death of Hugh McMillan either before or after my death, prior to the completion of his duties as Trustee, then I do hereby appoint H. Robert Stoepel as successor Trustee.

'(c) Notwithstanding the foregoing dispositions, I reserve to my wife Frances L. Uihlein, if she survives me, the right and power to dispose of both trusts estates No. One (1) and No. Two (2), by her last will and testament, if she so desires, to the persons hereinbefore named in fractional parts of more or less than I have designated herein, and also to include in such disposition one or more of my nieces and nephews not designated by me hereinabove, such right and power being expresly limited to one of disposition among my nieces and nephews or their direct blood descendants, and also to Saint Mary's Hospital of Milwaukee, Wisconsin, and any worthy charities as she may desire to benefit, limiting such gifts for charitable bequests however to an aggregate total sum of one-twentieth (1/20) of both Trust estates.'

Testator appointed his widow as executrix; the widow, together with Henry Uihlein, H. Robert Stoepel, and L. James Bulkley were appointed trustees of Trust No. One; and Marine National Exchange Bank of Milwaukee was named as trustee of Trust No. Two.

Under date of February 28, 1952, the widow, Frances L. Uihlein, as executrix, filed her final account, notice to determine Wisconsin inheritance tax, and petition, in which petition she prayed for the examination and allowance of her account, for the determination of the state inheritance tax, and that the residue of the estate be assigned according to law. Such petition came on for hearing on April 29, 1952, at which hearing the questions hereinafter set forth in the opinion of this court were raised. Some of such questions required a construction of the will. Briefs were filed by counsel on the points at issue, and under date of July 29, 1952, the trial court filed his memorandum decision. Thereafter, under date of September 22, 1952, the trial court entered the interlocutory judgment from which the aforementioned four appeals were taken. The order portion of such interlocutory judgment was in the form of three conclusions of law reading as follows:

'1. That the widow of said decedent, Frances L. Uihlein, is entitled to her one-third share pursuant to Section 233.14 of the Wisconsin Statutes without deduction therefrom of any Federal Estate Taxes and in addition thereto is entitled to the allowances permitted and authorized pursuant to Section 313.15 of the Wisconsin Statutes.

'2. That the balance of the residue of the Estate of said decedent after the assignment of the widow's share pursuant to her election and the statutes providing therefor, and including, subject to Chapters 233 and 237 of the Wisconsin Statutes, the residuary interest in the homestead after the life interest therein of said widow, shall be assigned to the trustees provided in said decedent's will to be held in trust during the life of said widow pursuant to the provisions of said decedent's will, to accumulate the income thereof during her life, and upon her death to distribute the principal and accumulated income thereof on her death to the persons named in said decedent's will in the portions enumerated subject, however, to the provision of the power of appointment granted to said widow by said will.

'3. That in the event the power of appointment is not exercised by Frances L. Uihlein through her last will and testament, the remaining one-tenth of said trusts (less $10,000) not specifically provided for in said decedent's will shall be distributed among the persons specifically named in said will proportionately to their respective parts as are therein now designated.'

Herbert C. Hirschboeck, Milwaukee, for appellant, Guardian ad litem.

Lines, Spooner & Quarles, Milwaukee (Louis Quarles, Maxwell H. Herriott, Richard R. Teschner, all of Milwaukee, of counsel), for appellant Frances L. Uihlein, Widow.

Dickinson, Wright, Davis, McKean & Cudlip, Detroit, Mich. (John G. Garlinghouse, Detroit, Mich., Edward L. Weber, Detroit, Mich., Steinmetz & Steinmetz, Milwaukee, of counsel), for respondents Henry Uihlein et al.

Weidner & Lemke, Milwaukee (Henry, Rehor & Wenzel, Bay Shore, N. Y., of counsel), for respondents Evelyn McIntosh Uihlein et al.

CURRIE, Justice.

These appeals raise the following issues:

(1) Is the widow who has elected to take her one-third share of the estate, pursuant to sec. 233.14, Stats., entitled to such share without deduction therefrom of any portion of the federal estate tax?

(2) Does the widow's election to take under the law extinguish the special power given to the widow under the will to appoint the residue of the estate upon her death among the nieces and nephews of the deceased, their descendants, and certain charities?

(3) Does the widow's election to take under the law have the same effect as her death and thereby accelerate the distribution of the remaining estate to the persons named as takers, in default of the exercise of the power of appointment, in the proportions provided in the testator's will?

(4) Inasmuch as the testator failed to dispose of one-tenth of the residue oif the estate (less $10,000), how is such one-tenth (less $10,000) to be assigned in making final distribution of the estate?

(5) Is the widow, who has elected to take under the law, in addition to receiving her homestead rights in the homestead and one-third of the personal estate, also entitled as sole heir at law and next of kin of the decedent to share in any intestate property of the deceased?

Impact of Federal Estate Tax

While technically the 'gross estate' of the deceased is all of the assets before any deduction for administration expenses, debts, allowances for support, and federal estate tax, we will, for purposes of simplicty of nomenclature in this opinion, designate that part of the total estate remaining after deduction of expenses, debts, and allowances as the 'gross estate'; while the term 'net estate' will be used to refer to that part of the estate which remains after deduction of the federal estate tax, as well as expenses, debts,...