residuary clause in Wisconsin

1953Harrington v. Pier (1900), 105 Wis. 485 , 82 N. W. 345 , and Estate of Schefe (1952), 261 Wis. 113 , 52 N. W. (2d) 375 .

1953Harrington v. Pier (1900), 105 Wis. 485 , 82 N. W. 345 , and Estate of Schefe (1952), 261 Wis. 113 , 52 N. W. (2d) 375 .

1950Consequently, the court’s conclusion that all of them are nevertheless entitled to share in Helga’s one-third share of said residue of his es-state as intestate property is in disregard of the rules that,— “. . . a testator is presumed to have intended a complete distribution of his estate, and a construction tending to that end will be preferred to one which results in intestacy as to any part.” (In re Donges’ Estate, 103 Wis. 497, 501 , 79 N. W. 786 ; Estate of Radcliffe, 194 Wis. 330, 331, 332 , 216 N. W. 501 ) ; and that “there is a very strong presumption against an intended intestacy — a

1950Consequently, the court’s conclusion that all of them are nevertheless entitled to share in Helga’s one-third share of said residue of his es-state as intestate property is in disregard of the rules that,— “. . . a testator is presumed to have intended a complete distribution of his estate, and a construction tending to that end will be preferred to one which results in intestacy as to any part.” (In re Donges’ Estate, 103 Wis. 497, 501 , 79 N. W. 786 ; Estate of Radcliffe, 194 Wis. 330, 331, 332 , 216 N. W. 501 ) ; and that “there is a very strong presumption against an intended intestacy — a

2022As an example, in Bradley v. Bradley, 123 Wis. 186 , 101 N.W. 393 (1904), our supreme court provided definitions of the term “residue”:  “All, of which no effectual disposition is made by will other than [by] the residuary clause.”  “All property subject to be bequeathed by her not otherwise effectually disposed of.” Bradley, 123 Wis. at 188 .

2022As an example, in Bradley v. Bradley, 123 Wis. 186 , 101 N.W. 393 (1904), our supreme court provided definitions of the term “residue”:  “All, of which no effectual disposition is made by will other than [by] the residuary clause.”  “All property subject to be bequeathed by her not otherwise effectually disposed of.” Bradley, 123 Wis. at 188 .

1995Id. at 817 . *498 The residuary clause in Mrs. Gordon's will disposed of the bulk of her estate to the Albert Einstein College of Medicine.

1977Gallagher v. McKeague, 125 Wis. 116 , 103 N.W. 233 (1905).

1977Gallagher v. McKeague, 125 Wis. 116 , 103 N.W. 233 (1905).

1974He [the testator] did not intend an intestacy as he attempted to give all his estate in trust; . . ." [22] Id. at page 406, giving as a guideline to ascertain intent of testator in gift by implication situations, this rule: "`. . . second, that a testator is presumed to have intended a complete distribution of his estate, and a construction tending to that end will be preferred to one which results in intestacy as to any part . . . " See also: Estate of Farber, supra, footnote 19, at page 370, stating: "`... it is to be presumed that he intended a complete distribution of his estate, and a con

1974He [the testator] did not intend an intestacy as he attempted to give all his estate in trust; . . ." [22] Id. at page 406, giving as a guideline to ascertain intent of testator in gift by implication situations, this rule: "`. . . second, that a testator is presumed to have intended a complete distribution of his estate, and a construction tending to that end will be preferred to one which results in intestacy as to any part . . . " See also: Estate of Farber, supra, footnote 19, at page 370, stating: "`... it is to be presumed that he intended a complete distribution of his estate, and a con

1974In those cases where the intent to completely disinherit a certain heir or groups of heirs is expressed beyond doubt, as evidenced by positive language stating which heirs are to take, and if any such heirs remain to take, the clearly expressed intention of the testator shall be recognized. . . .” (Emphasis supplied.) Will of Wehr, supra, footnote 2, at page 178, stating: “. . . the intent of a testator not to die intestate, manifested by his insertion of a residuary clause in the will, is not sufficient to effect a gift over of a lapsed portion of a. residuary bequest to the other residuary l

1974In those cases where the intent to completely disinherit a certain heir or groups of heirs is expressed beyond doubt, as evidenced by positive language stating which heirs are to take, and if any such heirs remain to take, the clearly expressed intention of the testator shall be recognized. . . .” (Emphasis supplied.) Will of Wehr, supra, footnote 2, at page 178, stating: “. . . the intent of a testator not to die intestate, manifested by his insertion of a residuary clause in the will, is not sufficient to effect a gift over of a lapsed portion of a. residuary bequest to the other residuary l

1972The decision was affirmed by this court in Estate of Kradwell (1969), 44 Wis. 2d 40 , 170 N. W. 2d 773 .

1972The decision was affirmed by this court in Estate of Kradwell (1969), 44 Wis. 2d 40 , 170 N. W. 2d 773 .

1969We agree with the trial court that this case is controlled by our opinion in Estate of Liginger (1961), 14 Wis. 2d 577 , 111 N. W. 2d 407 , 3 A. L.

1969We agree with the trial court that this case is controlled by our opinion in Estate of Liginger (1961), 14 Wis. 2d 577 , 111 N. W. 2d 407 , 3 A. L.

1962Will of Nielsen (1950), 256 Wis. 521, 527 , 41 N. W. (2d) 369 .

1962Will of Nielsen (1950), 256 Wis. 521, 527 , 41 N. W. (2d) 369 .

1953In considering the effect of such residuary clause the court stated ( 242 Pa. 340 , 89 Atl. 129 ) : “The fact that there is a residuary clause can in no wise limit or detract from what had been previously given in the will; nor can such residuary clause have the effect of putting a construction on a previous clause of the will in order to create a residue.” In Johnson v. Linstrom (1904), 92 Minn. 8 , 99 N. W. 212 , testator died leaving a wife, but no issue.

1953In considering the effect of such residuary clause the court stated ( 242 Pa. 340 , 89 Atl. 129 ) : “The fact that there is a residuary clause can in no wise limit or detract from what had been previously given in the will; nor can such residuary clause have the effect of putting a construction on a previous clause of the will in order to create a residue.” In Johnson v. Linstrom (1904), 92 Minn. 8 , 99 N. W. 212 , testator died leaving a wife, but no issue.

1953In considering the effect of such residuary clause the court stated ( 242 Pa. 340 , 89 Atl. 129 ) : “The fact that there is a residuary clause can in no wise limit or detract from what had been previously given in the will; nor can such residuary clause have the effect of putting a construction on a previous clause of the will in order to create a residue.” In Johnson v. Linstrom (1904), 92 Minn. 8 , 99 N. W. 212 , testator died leaving a wife, but no issue.

1953In considering the effect of such residuary clause the court stated ( 242 Pa. 340 , 89 Atl. 129 ): "The fact that there is a residuary clause can in no wise limit or detract from what had been previously given in the *225 will; nor can such residuary clause have the effect of putting a construction on a previous clause of the will in order to create a residue." In Johnson v. Linstrom (1904), 92 Minn. 8 , 99 N. W. 212 , testator died leaving a wife, but no issue.

1953The Pennsylvania court in Peterson's Estate (1913), 242 Pa. 330 , 89 Atl. 126 , had before it for construction a will wherein the testatrix made an outright bequest to her husband followed by a residuary clause inconsistent with such bequest.

1953The Pennsylvania court in Peterson's Estate (1913), 242 Pa. 330 , 89 Atl. 126 , had before it for construction a will wherein the testatrix made an outright bequest to her husband followed by a residuary clause inconsistent with such bequest.

1953The instant case is governed by Estate of Gray (1953), ante, pp. 217, 218, 61 N. W. (2d) 467 , where the language considered was as follows: “I herewith give, devise, and bequeath unto my wife, Mildred Gray, the share of my estate which she would receive under the law if I died intestate.” Here the language in question is “such homestead and dower rights in all of the real estate of which I may die seized as she would have if I had died intestate.” In the Gray Case, as here, the language quoted is followed by a residuary clause.

1953Harrington v. Pier (1900), 105 Wis. 485 , 82 N. W. 345 , and Estate of Schefe (1952), 261 Wis. 113 , 52 N. W. (2d) 375 .

1953Harrington v. Pier (1900), 105 Wis. 485 , 82 N. W. 345 , and Estate of Schefe (1952), 261 Wis. 113 , 52 N. W. (2d) 375 .

1951“It also appears that the courts are practically unanimous in holding that when the language of a will directs that legatees shall take ‘equally’ or ‘share and share alike,’ such language imports a division per capita In Estate of Porter (1941), 238 Wis. 181, 183 , 298 N. W. 624 , the will of testatrix contained the following residuary clause: “All the rest, residue, and remainder of my estate, I direct be divided in equal shares among my cousins, hereinafter named, to wit, Helen R.

1951“It also appears that the courts are practically unanimous in holding that when the language of a will directs that legatees shall take ‘equally’ or ‘share and share alike,’ such language imports a division per capita In Estate of Porter (1941), 238 Wis. 181, 183 , 298 N. W. 624 , the will of testatrix contained the following residuary clause: “All the rest, residue, and remainder of my estate, I direct be divided in equal shares among my cousins, hereinafter named, to wit, Helen R.

1950Consequently, the court’s conclusion that all of them are nevertheless entitled to share in Helga’s one-third share of said residue of his es-state as intestate property is in disregard of the rules that,— “. . . a testator is presumed to have intended a complete distribution of his estate, and a construction tending to that end will be preferred to one which results in intestacy as to any part.” (In re Donges’ Estate, 103 Wis. 497, 501 , 79 N. W. 786 ; Estate of Radcliffe, 194 Wis. 330, 331, 332 , 216 N. W. 501 ) ; and that “there is a very strong presumption against an intended intestacy — a

1950Consequently, the court’s conclusion that all of them are nevertheless entitled to share in Helga’s one-third share of said residue of his es-state as intestate property is in disregard of the rules that,— “. . . a testator is presumed to have intended a complete distribution of his estate, and a construction tending to that end will be preferred to one which results in intestacy as to any part.” (In re Donges’ Estate, 103 Wis. 497, 501 , 79 N. W. 786 ; Estate of Radcliffe, 194 Wis. 330, 331, 332 , 216 N. W. 501 ) ; and that “there is a very strong presumption against an intended intestacy — a

1950In this case, as under somewhat analogous provisions and surrounding extrinsic facts and circumstances in Will of Waterbury, 163 Wis. 510 , 158 N. W. 340 , it was evidently the testator’s intention that Claus Nielsen was to be paid a legacy of $1,000 and this amount was not to be augmented; that he bequeathed and devised all the rest, residue, and remainder of his estate to his brother Henry, his wife and their son; and that, — as the court found, — the testator intended to exclude from his estate all brothers and sisters not mentioned in his will.

1950In this case, as under somewhat analogous provisions and surrounding extrinsic facts and circumstances in Will of Waterbury, 163 Wis. 510 , 158 N. W. 340 , it was evidently the testator’s intention that Claus Nielsen was to be paid a legacy of $1,000 and this amount was not to be augmented; that he bequeathed and devised all the rest, residue, and remainder of his estate to his brother Henry, his wife and their son; and that, — as the court found, — the testator intended to exclude from his estate all brothers and sisters not mentioned in his will.

1948That that was the effect of substantially similar language was recognized in Scott v. West, 63 Wis. 529, 569 , 24 N. W. 161 , 25 N. W. 18 , where there was quoted with approval the following language from McArthur v. Scott, 113 U. S. 340, 381 , 5 Sup. Ct. 652, 28 L.

1948That that was the effect of substantially similar language was recognized in Scott v. West, 63 Wis. 529, 569 , 24 N. W. 161 , 25 N. W. 18 , where there was quoted with approval the following language from McArthur v. Scott, 113 U. S. 340, 381 , 5 Sup. Ct. 652, 28 L.

1948Will of Reimers, 242 Wis. 233 , 7 N. W. (2d) 857 ; Estate of Downs, 243 Wis. 303 , 9 N. W. (2d) 822 ; Estate of Wadleigh, 250 Wis. 284 ; 26 N.W. (2d) 667 .

1948That that was the effect of substantially similar language was recognized in Scott v. West, 63 Wis. 529, 569 , 24 N. W. 161 , 25 N. W. 18 , where there was quoted with approval the following language from McArthur v. Scott, 113 U. S. 340, 381 , 5 Sup. Ct. 652, 28 L.

1948That that was the effect of substantially similar language was recognized in Scott v. West, 63 Wis. 529, 569 , 24 N. W. 161 , 25 N. W. 18 , where there was quoted with approval the following language from McArthur v. Scott, 113 U. S. 340, 381 , 5 Sup. Ct. 652, 28 L.

1948Will of Reimers, 242 Wis. 233 , 7 N. W. (2d) 857 ; Estate of Downs, 243 Wis. 303 , 9 N. W. (2d) 822 ; Estate of Wadleigh, 250 Wis. 284 ; 26 N.W. (2d) 667 .

1948Will of Reimers, 242 Wis. 233 , 7 N. W. (2d) 857 ; Estate of Downs, 243 Wis. 303 , 9 N. W. (2d) 822 ; Estate of Wadleigh, 250 Wis. 284 ; 26 N.W. (2d) 667 .

1948Will of Reimers, 242 Wis. 233 , 7 N. W. (2d) 857 ; Estate of Downs, 243 Wis. 303 , 9 N. W. (2d) 822 ; Estate of Wadleigh, 250 Wis. 284 ; 26 N.W. (2d) 667 .

1948Will of Reimers, 242 Wis. 233 , 7 N. W. (2d) 857 ; Estate of Downs, 243 Wis. 303 , 9 N. W. (2d) 822 ; Estate of Wadleigh, 250 Wis. 284 ; 26 N.W. (2d) 667 .

1948Will of Reimers, 242 Wis. 233 , 7 N. W. (2d) 857 ; Estate of Downs, 243 Wis. 303 , 9 N. W. (2d) 822 ; Estate of Wadleigh, 250 Wis. 284 ; 26 N.W. (2d) 667 .

1941In making this distribution the court was largely governed by the rule stated in Will of Asby, 232 Wis. 481, 487 , 287 N. W. 734 , as follows : “However, it appears that the great majority of the courts have recognized and followed the rule of construction that if a testamentary gift is made to one or more persons named and the children of another person, as for instance, to A and the children of B, the persons entitled will, in the absence of anything to show a contrary intention, take per capita, and not per stirpes *185 Of the rule above quoted it is stated in Will of Morawetz, 214 Wis. 595

1941In making this distribution the court was largely governed by the rule stated in Will of Asby, 232 Wis. 481, 487 , 287 N. W. 734 , as follows : “However, it appears that the great majority of the courts have recognized and followed the rule of construction that if a testamentary gift is made to one or more persons named and the children of another person, as for instance, to A and the children of B, the persons entitled will, in the absence of anything to show a contrary intention, take per capita, and not per stirpes *185 Of the rule above quoted it is stated in Will of Morawetz, 214 Wis. 595

1941In making this distribution the court was largely governed by the rule stated in Will of Asby, 232 Wis. 481, 487 , 287 N. W. 734 , as follows : “However, it appears that the great majority of the courts have recognized and followed the rule of construction that if a testamentary gift is made to one or more persons named and the children of another person, as for instance, to A and the children of B, the persons entitled will, in the absence of anything to show a contrary intention, take per capita, and not per stirpes *185 Of the rule above quoted it is stated in Will of Morawetz, 214 Wis. 595

1941In making this distribution the court was largely governed by the rule stated in Will of Asby, 232 Wis. 481, 487 , 287 N. W. 734 , as follows : “However, it appears that the great majority of the courts have recognized and followed the rule of construction that if a testamentary gift is made to one or more persons named and the children of another person, as for instance, to A and the children of B, the persons entitled will, in the absence of anything to show a contrary intention, take per capita, and not per stirpes *185 Of the rule above quoted it is stated in Will of Morawetz, 214 Wis. 595

1941As stated in Rose v. Ruggles, 137 Wis. 439, 443 , 119 N. W. 97 : “There is usually little gain from discussion of different theories of construction of language used in a will.” The reviewing court, to paraphrase the language next following that above quoted, carefully studies the provisions of the will under construction, separately and in their context correlative with each other, and becomes persuaded that the intention of the testator was as it declares, rather than as it was declared by the judgment that it is reviewing.

1941As stated in Rose v. Ruggles, 137 Wis. 439, 443 , 119 N. W. 97 : “There is usually little gain from discussion of different theories of construction of language used in a will.” The reviewing court, to paraphrase the language next following that above quoted, carefully studies the provisions of the will under construction, separately and in their context correlative with each other, and becomes persuaded that the intention of the testator was as it declares, rather than as it was declared by the judgment that it is reviewing.

1941The testatrix must be presumed to have had in mind, in view of the general language of the residuary clause, that all of her estate that for *172 any reason might not pass under the particular bequests would go to the residuary legatees under the general language of the residuary clause.” In Will of McIlhattan (1927), 194 Wis. 113, 117 , 216 N. W. 130 , the court held that— “Upon the election of the widow and the death of Fred Mcllhattan the purposes of the trust ceased, and the estate of the trustees also ceased under the statute quoted.

1941The testatrix must be presumed to have had in mind, in view of the general language of the residuary clause, that all of her estate that for *172 any reason might not pass under the particular bequests would go to the residuary legatees under the general language of the residuary clause.” In Will of McIlhattan (1927), 194 Wis. 113, 117 , 216 N. W. 130 , the court held that— “Upon the election of the widow and the death of Fred Mcllhattan the purposes of the trust ceased, and the estate of the trustees also ceased under the statute quoted.