192 Wis. 200 | Wis. | 1927
This is an appeal from a judgment of the county court of Fond du Lac county construing the will of Theodore Manderscheid, deceased. The will provided:
“After the death of my wife Susan, or on her remarriage, I give and devise and bequeath the remainder of all my said estate as follows: I have advanced to my son Henry $4,500, to my son Arthur $500, to my son Louis $4,000, to my son Percel $5,500, to my daughter Ella $500, and these sums so advanced shall be added to the residue of my estate and that sum divided into five equal parts, each such child to have in all a fifth share of my whole estate in the end, such fifth share being made up of said advancements and what they are to receive after my death as aforesaid.”
The son Henry filed a petition denying that his father had made advancements to him in the sum of $4,500 prior to his death, but that $4,000 so paid to him was money bequeathed to him by his mother and grandparents, and which came into the hands of his father as his guardian, and that it was not an advancement made by the father out of the father’s es
The court took testimony and made findings of fact to the effect that Henry Manderscheid inherited about $4,000 from his maternal grandparents, which sum was held for a time by Theodore Manderscheid, the deceased and father, as Henry’s general guardian, and that said $4,000 constituted a part of said $4,500 which he referred to in his will as an advancement. He also found that Louis and Percel remained at home at the request of the testator after they had arrived at their maturity and worked on the farm, and that the $4,000 advanced to Louis, and $4,000 out of the $5,500 which is declared in his will to have been advanced to Percel, was in payment to Louis and Percel for their services so rendered on the farm. He further found that, evidently, a mistake was made through a misunderstanding between the testator and the scrivener who drew and prepared the will, by erroneously designating the transactions of payments of the debts by the testator to said three sons in his will as advancements; that the main intention 'of the testator as expressed in his will was to divide his estate equally as near as possible among his children; that in view of this expressed intention to divide the estate equally among his children, and taking into consideration the fact that the payments of the debts of $4,000 to each of his sons Henry, Louis, and Percel having been erroneously designated and termed in the will as advancements, these so-called advancements to each of said sons should be disregarded in the assignment and distribution of said estate to the extent of $4,000 to each of said three sons. The court further adjudged and decreed that the “will of said testator be and the same hereby is construed so that the advancement to the extent of $4,000 charged against Henry Manderscheid be and the same is set aside and disregarded, and that the advancement of $4,000 to Louis Man-derscheid be and the same is set aside and disregarded, and
This case is ruled by Estate of Wells, 184 Wis. 242, 199 N. W. 52, where a similar question was under consideration, and the reasoning of the opinion in that case is applicable in every particular to the situation here presented. It may be conceded that the testator had a mistaken notion of the legal significance of the term “advancement” as here used. It may also be conceded that his individual idea of equality, as revealed by the terms of his will, might not receive universal concurrence. Nevertheless, he has plainly stated in his will the method of procedure by which the amount to be received by each of his children shall be determined. The result arrived at constitutes his idea of an equal division of his estate. Even though he may be wrong, even though no one may agree with him, nevertheless he has definitely and clearly prescribed the manner in which the amount to be paid to each of his children shall be determined, and his will in this respect must be effectuated. Even though the amounts paid to his respective sons were not in legal contemplation advancements, he treated them as advancements, and he indicated his unmistakable intention to have such sums taken into consideration in arriving at the amount of the benefits which they should receive under his will. This he had a perfect right to do. He knew the circumstances under which he paid the sons the $4,000 which the court by its judgment eliminated from consideration. For reasons entirely satisfactory to himself he desired that those sums be taken into consideration in the manner indicated by him in determining
By the Court. — So ordered.
