Kupsick v. Diestelhorst, 171 Wis. 519

171 Wis. 519 | Wis. | 1920

Vinje, J.

The question for decision is whether the bequest in the will of $3,000 is in payment of the debt created by the ante-nuptial agreement or is an additional gift. The general rule of the English and American cases is that where a bequest is made in a will of an amount equal to or greater than a debt owing from the testator to the legatee, the presumption, in the absence of other facts and circumstances showing a contrary intent, is that the bequest in the will is in payment of the debt, especially so where the time and manner of payment are the same. See note to Fidelity Trust Co. v. Martin (158 Ky. 522, 165 S. W. 665) L. R. A. 1915B, 1156, where the authorities are collected. The presumption raised by the rule, however, is readily rebuttable by facts or circumstances showing a different intent. This presumption was recognized by our court in Graves v. Mitchell, 90 Wis. 306, 63 N. W. 271, and that case controls this unless a different intention can be gathered from the facts and circumstances surrounding the testator. The trial court negatived a different intent, and in order to reverse such finding this court must be satisfied that it was clearly wrong. When the ante-nuptial agreement was made testator was a widower. Four sons by his first marriage survived him, with all of whom he was on good terms. Plaintiff was a divorced woman with children who formed part of the family after her marriage to testator. She remarried again before the final settlement of the estate. The domestic life of testator and plaintiff was neither specially happy nor specially inharmonious. The estate of about $32,000 was accumulated almost entirely before testator married plaintiff and largely with the help of his son John, who had assisted his father in his business for the last twenty-two years. Under the will the widow received more than any of the children except John, excluding the bequest as an additional gift. If that were added to her share she would 'have nearly as much as the son, who had largely produced the estate. Under such circumstances we think the trial court correctly found that it was not the intent of the testator to make an additional bequest of $3,000 to the widow, but that the bequest was in payment of the debt created by the ante-nuptial agreement. The identities of amount, time, and manner of payment, and the circumstances surrounding the testator, all indicate .the trial court reached the right result.

By the Court. — Judgment affirmed.