273 Wis. 438 | Wis. | 1956
The appellant submits that persons expressly disinherited are disqualified from receiving any part of the estate under any theory and, preferably, the entire residue should be assigned to the only surviving individual mentioned in the residuary clause; that is, Arthur. Or, less desirable but still acceptable, Meta’s share of the residue should be distributed among the next of kin who have not been disinherited by the will. He relies mainly on Will of Nielsen (1950), 256 Wis. 521, 41 N. W. (2d) 369, in which we gave great consideration to extrinsic facts and circumstances and reached a conclusion that the death of one of the residuary heirs did not result in a lapsed legacy but brought into effect a presumed wish of the testator’s that some, but not
“ ‘Fifth: For reasons known to all, it is my will and I hereby direct that no part of my estate shall go to any of my nieces or nephews.’ ”
Mr. Justice Wickhem spoke for the court, saying (p. 579) :
“The trial court appears to have been impressed by the fifth clause in which the testator disclosed a positive intention that his nieces and nephews take nothing under his will. The answers to this are, (1) that they do not take under the will, and (2) that this paragraph throws no light upon the meaning of the fourth paragraph as applied to the present situation. If one of the nieces had actually nursed him during his last illness, the fifth clause might be effective to exclude her as a beneficiary under the fourth clause. Here, however, the nieces and nephews do not take under the will but by law. The fourth paragraph being the residuary clause and the gift failing, the residue goes by operation of the law of descent. No doubt this is not what testator intended, but the only way in which he could vary the rules of descent would be by making an effective gift at variance with these. This he did not do.” (Our emphasis.)
We are asked by respondents to inform the trial court upon remand that the executor’s (appellant’s) costs and disbursements must be paid by him personally, and not allowed as a charge against the estate, because of his strong personal interest in the success of his appeal. We do not attempt to control the trial court’s discretion in its allowance of the executor’s account until it becomes manifest that discretion has been abused.
By the Court. — Order affirmed.