Brooks v. Schwartz

167 Wis. 75 | Wis. | 1918

Eschweiler, J.

If the courts below were correct in the construction of the last will of Homer Brooks, the other features of the petition need not be considered.

The learned and able counsel for the petitioner insists that the first paragraph of the will in question should be construed as giving but a life estate to the widow and the fee to the petitioner as residuary devisee. He contends that the facts and circumstances surrounding the testator at the time of the making of the will disclose that the petitioner had lived with his father and mother and assisted in taking care of the farm that they owned and occupied near East Troy, and all without any express provision for compensation other than the understanding that he was to be ultimately compensated for such services; that the farm had been disposed of several years prior to the making of the will; that the father and mother had then purchased and moved to the homestead in question in the village of East Troy; and that the testator had no other, real estate at the time of the execution of the will than this homestead; and from these facts and the language of the will itself he argues that the reference to ‘‘real” estate in the third paragraph of the will must necessarily be construed as referring to the fee of the homestead, or that otherwise it is meaningless. It is also urged that the words “during her lifetime,” at the end of the first paragraph, should be properly construed as referring to the gift of the homestead to the wife as well as to the yearly allowance of $1,000.

Controlled by the rule that by sec. 2278, Stats., it is the *78duty of the court to construe every devise of land as conveying the devisor’s entire estate therein unless it shall clearly appear by the will that a lesser estate was intended (Will of Weymouth, 165 Wis. 455, 161 N. W. 373), and giving full weight to the various suggestions made, we. are constrained to hold that from within the four corners of the will it plainly appears that there was intended a gift of the fee in the homestead to the widow and not a lesser estate, and that to hold otherwise would be doing violence to the recognized canons of construction for such documents. It follows there-: from that the judgment must be affirmed.

By the Gourb. — The judgment of the circuit court is affirmed.