126 Wis. 660 | Wis. | 1906
Tbe motion to dismiss tbe appeal was properly denied. True, the statute (sec. 4031, Stats. 1898) governing tbe matter confines tbe right of appeal to parties aggrieved, and tbe manner of asserting it to tbe filing of a notice of appeal and undertaking with tbe county court witbin a specified time. True, also, in tbis case tbe form of tbe notice of appeal is that tbe authorized representative of tbe parties in interest “being aggrieved . . . hereby appeals.” But it is perfectly apparent that tbe principals' — 'the ones represented by tbe person signing tbe notice — were in fact aggrieved, and that tbe notice was by their authority filed in their behalf. No form for sucb a notice is prescribed by statute. Neither tbe words “being aggrieved” nor any similar words are essential thereto. Tbe fact that they were used in tbe instance in band does not militate against tbe circumstance that tbe notice was really filed in behalf of tbe parties actually aggrieved, and by competent authority.
Tbis appeal turns on tbe meaning of tbe words “my nearest blood relations,” as used in tbe codicil. True, as contended by counsel for appellant, such words, generally speaking, in wills mean sucb persons as take under tbe statute regarding tbe distribution of estates of intestates. Cleaver v. Cleaver, 39 Wis. 96; 2 Jarman, Wills (Bigelow’s ed.) *972; 2 Woerner, Administration, *904; Drew v. Wakefield, 54 Me. 291; Gallagher v. Crooks, 132 N. Y. 338, 30 N. E. 746; Cummings v. Cummings, 146 Mass. 501, 16 N. E. 401; Nye v. Grand Lodge A. O. U. W. 9 Ind. App. 131, 36 N. E. 429.
It is not claimed by the learned counsel for appellant but what the woi’ds in question may be fairly considered open to construction, nor but what the limits of their meaning in the ■proper sense include relatives who are illegitimate, and those whose relationship must be traced through illegitimacy.
But it is said the fact that the words under discussion were used in the will as it existed at first, in connection with the •one that they were repeated in the codicil in connection with ;“if there be any,” indicates that the testator entertained-doubt as to whether he had relatives falling within-their scope, which is inconsistent with his having in mind illegitimates or •their descendants. The argument is without force since he must have known, or had reasonable ground to suppose, that at least he had no relatives other than the descendants of his illegitimate brother and sister, and might have none what-•cver. He left Germany when his mother was about fifty-ihree years qf age. She had never been married. His illegitimate sister was then thirty-one years and his illegitimate brother eighteen years of age. The former died thirty-six years before the date of the codicil. Had she been then alive ■she would have been eighty-seven years of age. The latter died nine years before such date. Had he been then alive he would have been seventy-four years of age. The mother died thirty-two years before such date. Had she been then alive she would have been one hundred and eleven years of age. 'The brother married seven years after the testator left Germany. So far as appears, the latter did not keep informed as ■to the history of his family after he came here. It was nearly fifty years after the brother’s marriage before the codicil was made and fifty-eight years after such marriage before the testator died. It is most likely that when he made the will in T889 he had good reason to suppose his brother might be liv
The offense of the parents in the case of an illegitimate offspring under the humane laws of our day is not visited upon the children to the extent of preventing them from taking-under a will regardless of tire ordinary meaning of the term “blood relatives,” or “child,” or “heirs,” or “next of kin” at' common law. The intention of a testator as regards ille-gitimates is to be respected and effectuated by courts the-same as his intention respecting lawful issue. Will of Scholl, 100 Wis. 650, 76 N. W. 616. Speaking of the word “child” in that case it was said:
“Where there are no immediate children to whom the term-can apply, or where it is manifest from other words in the-will that it was used in the broad sense of issue or descendants, it may be construed to include grandchildren, stepchildren, illegitimate children, or descendants, however remote.”
In harmony with the foregoing there are many reported-cases to the effect that where a testator has no blood relations,, except through his mother, her descendants are his blood relatives whether they are illegitimates or the descendants of ille-gitimates, and such persons are -included within the term-
There is also much authority -to the effect that where ille-gitimates have been given inheritable blood as to the mother, as in this state, the blood relatives of such a person include his brothers and sisters of the common mother, though they are also illegitimates, and also include their descendants. It is said in 1 Woemer, Administration (2d ed.) *157, that illegitimates “are almost universally allowed to inherit from the mother-and through the mother,” referring to many states which have statutes on the subject, including this one. See, also, Bennett v. Toler, supra; Briggs v. Greene, 10 R. I. 495, 497; Burlington v. Fosby, 6 Vt. 83, 88; Bales v. Elder, 118 Ill. 436, 11 N. E. 421; Sutton v. Sutton, 87 Ky. 216, 8 S. W. 337; Dickinson s Appeal, 42 Conn. 491, 504; Brown v. Dye, 2 Root, 280; Rogers v. Weller, 20 Fed. Cas. 1130, 1131. How this court might hold on that question, were it necessary to decide the same, we need not now suggest. The subject is only referred to as emphasizing the idea that the-judicial leaning towards a construction of language which might or might not include- illegitimates so as to exclude them in cases like this, which formerly existed and which the learned counsel for appellant invokes, is somewhat obsolete.
By the Gourt.- — The order appealed from is affirmed.
