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WILL OF McDOWELL

31 Wis.2d 519 (1966)

WILL OF McDOWELL: MALCOLM, Appellant, v. FIRST NATIONAL BANK & TRUST COMPANY OF RACINE, Executor, Defendant: BUSH and others, Respondents.

Supreme Court of Wisconsin.

July 1, 1966.

Attorney(s) appearing for the Case

For the appellant there was a brief by Charne & Tehan, and oral argument by William E. McCarty, all of Milwaukee.

For the respondents Mrs. Charles Bush, Mrs. Floyd Brown, Samuel C., Raymond, Phillip, Willington, and Oakley Hopkins, Mrs. Lawrence Sutton, and Harold A. Konnak, guardian ad litem for unknown heirs of L. A. McDowell, there was a brief by Konnak & Constantine of Racine, and oral argument by Charles M. Constantine.

For the respondents Daniel, Deborah, David, and Dawn Eppers and Randal P. Miller there was a brief by John W. Foley and Foley, Capwell, Foley & Kolbe of Racine, and oral argument by John W. Foley, guardian ad litem.

FAIRCHILD, J.

1. Robert Malcolm's claim. Paragraph Fifth, on its face, provides for a gift to Malcolm only upon the contingency that neither Mrs. McDowell nor Jerome survive the testator, and Jerome die without issue. Since both did survive, the contingency did not occur, and paragraph Fifth, according to its terms, never became operative.

Malcolm, however, argues that the intention of Mr. McDowell to benefit Malcolm in preference to all others except...

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