Zillmer v. Landguth

• Citation: 94 Wis. 607,69 N.W. 568
• Parties: ZILLMER v. LANDGUTH ET AL.
• Decision Date: 15 December 1896
• Court: United States State Supreme Court of Wisconsin

94 Wis. 607

69 N.W. 568

ZILLMER

v.LANDGUTH ET AL.

Supreme Court of Wisconsin.

Dec. 15, 1896.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Mary Zillmer against John Landguth, executor, etc., and others, for a construction of the will of Lizzie Landguth. From a decree for defendants, plaintiff appeals. Affirmed.

This is an action for the construction of a will. The facts were not in dispute. Andrew Landguth, a widower, died in Milwaukee, December 1, 1880, leaving two daughters as his sole heirs, Mary (the plaintiff) and Lizzie, aged, respectively, 14 and 12 years, and his estate consisted of a homestead in Milwaukee. He left a will, which was afterwards duly probated, and which, omitting formal parts, was as follows: “I do hereby give, devise, and bequeath unto my children, Mary and Elizabeth, all of my property, of whatsoever kind and description, both real and personal and mixed, wheresoever the same may be situated; said property, and the whole thereof, to be divided equally between my said children, Mary and Elizabeth, share and share alike, upon the express condition that they shall not have the right to dispose of said property, or any part thereof, until the oldest of my said children becomes of the age of twenty-five years; my said children, Mary and Elizabeth, to hold said property subject to such condition, unto themselves, their heirs and assigns, forever.” His estate was duly administered, and on the 8th of December, 1882, a final decree was rendered by the county court of Milwaukee county, settling the estate, and adjudging that the real estate of the deceased be and was thereby “assigned and transferred to Mary Landguth and Elizabeth Landguth, the heirs at law of said deceased, in common and undivided.” No appeal was ever taken from this decree. Elizabeth or Lizzie Landguth became of age in 1889, and thereafter, and on the 27th of September of that year, died, leaving a will, by which she devised all her property, including her undivided one-half of the estate of her father, to the defendants. At the time of the death of Lizzie, Mary had not reached the age of 25 years, but reached that age before the commencement of this action. Lizzie's will was duly probated, and thereafter this action was begun; the plaintiff claiming that Lizzie had no power to devise the property before Mary had arrived at the age of 25 years, and consequently that Lizzie's share vested in Mary, as her heir at law,...