#### Estate of De Roy: Flemming and others, Respondents, vs. Griem, Administrator, Appellant.

*November 18*

December *7, 1915.*

*Wills: Construction: Death of legatee before making of mil.*

A testator having bequeathed certain legacies to persons residing' in Germany whom he had not seen or corresponded with for more than twenty years, and having, by a clause applicable only to this class of legatees, provided that “in case of the death of either” of such legatees her legacy “shall be payable to the legal heir or heirs of such legatee,” it is *held*that such clause was intended to apply to death of a legatee either before or after the-making of the will.

Appeal from a judgment of the circuit court for Calumet county: Geo. W. BueNEll, Circuit Judge.

*Affirmed.*

This was a proceeding begun February 5, 1910, in the-county court of Calumet county by Jacob Severin, executor of the will of De Roy, praying for the construction of certain portions of De Roy’s will. On the same day Severin filed his final account, which showed a balance in his hands of $14,871.01 after paying all debts and expenses of administration.

The clauses of the will of which construction was prayed were the following:

“3. I give, devise and bequeath to my cousin Amalia Hinseh of Hamburg, in Germany, the sum of $1,500.

“4. I give, devise and bequeath to *Wilhelmine Otien*of' Hamburg, in Germany, the daughter of my cousin Wilhel-mine Meyer *(née*Bichéis.), the sum of $1,500.

“5. I give, devise and bequeath to Olga Pracht of Hamburg, in Germany, daughter of my cousin Auguste Reinbold *(née*Bichéis), the sum of $1,500.

“In case of the death of either or any of the five legatees-above named, the legacy hereby bequeathed to them or either of them, by this my last will, shall be payable to the; legal heir or heirs of such deceased legatee.”

*609It appeared that De Roy, a resident of Calumet county for more than twenty years, made his will April 26, 1909, and died May 20th following; that the legatees named in the disputed paragraphs of the will were relatives living in Germany with whom he had no correspondence and whom he had never visited; that Amalia Hinsch died without issue June 29, 1906; that Olga Pracht died July 10, 1891, leaving one child named *Elfriede Pracht*surviving; that the name of the person called *Wilhelmine Otten*in the fourth paragraph was really *Wilhelmine Flemming.*The county court found that the legacy to Amalia Hinsch lapsed by reason of her death without issue; that the bequest to *Wilhelmine Flemming*(under the name Otten) was valid; and that the bequest to Olga Pracht would descend to her daughter, *El-friede*Pracht, on proof that said *Elfriede Pracht*was still alive, leave being given to make proof of that fact.

The executor appealed to the circuit court from those parts of the judgment in favor of *Wilhelmine Flemming*and *El-friede*Pracht, and said last named legatees appealed from that part of the judgment declaring the legacy to Amalia Hinsch lapsed and directing that the same go into the residuary estate.

Before the appeals came to trial Severin died testate, having named the appellant, Griem, his executor, and *Griem*qualified as such in Uovember, 1911. The Severin estate was inventoried at $14,560. ‘ In March, 1912, *Griem*was appointed administrator *de bonis non*of the estate of De Roy and qualified as such. In September and October, 1912, the appeals were revived and continued in the circuit court on the application of *Griem*as administrator *de bonis non.*The appeals were tried in the circuit court in March, 1914, and that court-held that the bequest to *Wilhelmine Flemming*was valid; that the bequest to Olga Pracht was valid and passed to *Elfriede Pracht,*her daughter and only heir; that the bequest to Amalia Hinsch did not lapse but passed to *Wilhel-*
      *610
      *mine Flemming,*her only beir at law; that it was the intention of the testator to direct that if any of the legatees named in the paragraphs in question were dead at the time the will was made or should die later, in either case the legany of the deceased legatee should not lapse, but pass to the legal heirs of such legatee. The judgment directed that the administrator *de bonis non*pay over the legacies (less the inheritance tax in each case) in accordance with the findings. Motion was afterwards made by the administrator to modify the judgment so that the same should not be a personal judgment against him, but only that the legacies be paid out of the moneys in his hands belonging to the estate of De Roy. This motion was based on affidavits showing that the administrator received from the De Roy estate $3,000 and no more. By affidavits filed in opposition it appeared that upon settlement of the Severin estate *Griem*had in his hands a considerable sum of money and was directed by the county court to retain in his hands out of said moneys $1,618.75 to pay the costs and expenses of said appeals and discharge the legacies in the De Roy will proportionally.

On this motion the judgment was modified so as to direct that the legacies be paid out of the estate of De Roy and out of the $1,618.75 reserved as aforesaid, or so much thereof as may be applicable thereto and necessary therefor. Erom this judgment the administrator appeals.

*J. E. McMullen,*for the appellant.

Eor the respondent there was a brief by *L. P. Fox,*attorney, and *Rubens, Fischer, Mosser & Barnum,*of counsel, and oral argument by *Mr. Fox*and *Mr. H. Barnum.*

Winslow, C. J.

A number of detail errors are alleged, all of which have been examined and found untenable. It is not considered that any good purpose would be subserved by stating them. The only question of fact or of law in the case worthy of discussion is the question as to the meaning of that *611clause of the will which provides that in ease of the death of either of the legatees her legacy “shall be payable to the legal heir or heirs of such legatee.”

Does this include legatees who had died prior to the making of the will ? The circuit court answered this question in the affirmative under the peculiar circumstances of this case, *i. e.*the circumstances that the legatees named lived in Germany, had not been visited by the testator in more than twenty years, and apparently had never been in correspondence with the testator.

The trial court thought that these facts made it clear that the clause so industriously inserted in the will and applicable only to this class of legatees was meant to cover death either before or after the making and thus provide for all contingencies.

We agree with this construction. The intent of the testator to be gathered from the will itself in the light of the surrounding circumstances is, of course, controlling. This principle needs no citation of authorities in its support.

*By the Court.*— Judgment affirmed.