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Binger v. Ackerman

OCTOBER 14, 1957.

AULTMAN BINGER ET AL., PLAINTIFFS-APPELLANTS,

v.

KATE ACKERMAN ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Menard county; the Hon. MAURICE E. BARNES, Judge, presiding. Affirmed.

JUDGE ROETH DELIVERED THE OPINION OF THE COURT.

Plaintiffs, appellants here, filed their amended complaint, seeking the construction of the last will and testament of Harman Aden, also known as Harman Meyer, deceased. On defendants' motion the amended complaint was dismissed for want of equity and plaintiffs prosecute this appeal.

The mother of the testator was twice married and the testator was the only child of her first marriage. The father of the testator had two brothers both now dead. One of these brothers left no known descendants. Descendants of the other are two grandchildren who are still living and who bear the legal relationship to the testator of paternal first cousins once removed. The mother of the testator had eight brothers and sisters. Of their respective marriages, there were five children living at the testator's death and these five bear the legal relationship to the testator of maternal first cousins. In addition there were several children of these maternal first cousins living at testator's death who bear the legal relationship to the testator of first cousins once removed.

By her second marriage, testator's mother had two children, both of whom predeceased the testator. These children were never married. The testator's stepfather had five brothers and sisters. The plaintiffs are children of the respective marriages of these brothers and sisters and they bear no legal relationship to the testator.

The will, omitting the parts which are not material here, is as follows:

"9. I give and bequeath to my first cousin, Kate Ackerman, the sum of Six Thousand Dollars ($6,000.00). In the event that she should predecease me, then this legacy of Six Thousand Dollars ($6,000.00) shall go to her daughter, Grace Ackerman.

"10. I give and bequeath to my second cousin, Grace Bless, the sum of One Thousand Dollars ($1,000.00).

"11. I give and bequeath to my second cousin, Maggie Onken, the sum of Five Hundred Dollars ($500.00).

"12. I give and bequeath to Grace Ackerman, daughter of my first cousin, Kate Ackerman, the sum of Five Hundred Dollars ($500.00).

"13. I give and bequeath to William Aden, who is no relation to me, the sum of Twenty-five Dollars ($25.00).

"14. I give and bequeath to my first and second cousins, Mary Binger, Edward Wilken, Charles Boehm, Mrs. Henry Budke, John Coleman and Dora Browning, the sum of Ten Dollars ($10.00) each; and to Altman Binger the sum of Fifty Dollars ($50.00).

"15. I give and bequeath to George Vance and Bessie Vance the sum of Five Hundred Dollars ($500.00) to be shared by them, share and share alike.

"16. I give and bequeath to Mrs. Katie Nelssen, Marvin Nelssen, Melvin Nelssen, Vernie Nelssen and Mrs. Irene Nelssen Vobaril the sum of One Hundred Fifty Dollars ($150.00) each.

"17. I give and bequeath to my cousins, John Tobias, Henry Tobias, Jerry Tobias and Ben Tobias, all of whom reside in Franklin, Nebraska, the sum of One Hundred Fifty Dollars ($150.00) each.

"18. I give and bequeath to my cousin, Lizzie Luken, and to my second cousins, the children of Webkie Schroeder, the sum of ...


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