Bowker v. Shields

140 Wis. 330 | Wis. | 1909

MMRShaix, J.

The question at issue on the appeal may be concisely stated thus: If a person having children dies testate leaving property by testamentary gift to one of them with no direction for disposition thereof in case of the termination of that estate by death or otherwise, and such child dies in infancy, and so, necessarily, intestate, he not having been married, does such property descend to the other children of such person, living at the death of the first taker and the children of such as are dead, by right of representation ? That, as beld by the learned trial court, is unmistakably ruled by subd. 5, sec. 2270, Stats. (1898), in these words:

“If any person shall die leaving several children or leaving one child and the issue of one or more other children, and any such surviving child shall die under age, not having been married, all the estate that came to the deceased child by inheritance or by testamentary gift from such deceased parent and all personal property which belongs to such deceased child by reason of distribution under subd. 6 of sec. 3935 shall descend and be distributed in equal shares to the other children of the same parent and to the issue of any such other children who shall have died, by right of representation.”

The statute is so plain, that it would be a waste of words to indulge in discussion for the purpose of elucidating its meaning or pointing out its application to the facts of this case, as summarized in the proposition stated.

Counsel for appellant suggest that the statute is a law of descent, which does not apply here because the property in question was disposed of by the will of Albert Bowker. True, the statute is one regulating descent and so applies wholly to intestate property. But the property in question is clearly within the statute, since, though it is testate property as regards Albert Bowker, Sr., and came to Albert Irwin by testamentary gift, it is intestate property of the latter. By the terms of the law it includes property received by a child, subsequently dying in infancy, by inheritance or testamentary gift.

Counsel is plainly in error in the claim that the remainder over after the death of Albert Irwin was disposed of by tire will of his father. lie did not even will the property, as suggested, to Albert Irwin and his heirs. Had he done so the term “heirs” would be referable to the section under consideration. The will gave, direction to the title only till it should vest in Albert Irwin, the words being: “I give and bequeath to my son Albert Irwin all the rest, residue, and remainder of my estate, both real and personal, subject,” etc., specifying the legacies which have been paid as indicated in the statement. That left direction of the title in the circumstances which occurred wholly as specified in the statute, as the circuit court decided.

By the Court. — Judgment affirmed.