57 Wis. 382 | Wis. | 1883
The judgment of the circuit court in this action was reversed by this court upon ah appeal taken therefrom by^the present respondents, and upon the remit-titur of this court to the circuit court and on motion of the former appellants the said circuit court again entered judgment in said action, and from this judgment the executor appeals to this court. The opinion on the first appeal very clearly states the questions passed upon by this court, and the remittitur directs the circuit court to enter judgment in accordance with such opinion. See Baker v. Baker, 51 Wis., 538-549. To clearly understand what was determined by this court on the former appeal, it will be necessary to give a brief history of the litigation in this case.
William Baker, now deceased, died testate. His will was duly probated. Mary Ann Balcer, the present respondent, is the widow of said deceased. The appellant, James Bakar, was duly appointed and qualified as executor of the will of said deceased. After the probate of the will and the qualification of the executor, upon the application of the widow, the county court, on the 31st of August, 1876, made an order allowing the said widow $50 per month for her support and maintenance for one year from March 23, 1876. This allowance was paid by the executor. On the the 17th day of November, 1877, said county court made another order, on the application of the widow, granting her an additional allowance of $50 per month, or $600 per year, from March 23, 1877, to the time of the final settlement of the estate by the executor.
Previous to the 1st day of April, 1878, the executor, upon proper notice to all parties interested, made application to the county court for a final settlement of his accounts as executor of the estate of said deceased. A hearing was had upon such application in said county court, and on the 1st day of April, 1878, that court made a final order adjudging that the final account as rendered by the said executor was in all respects correct, and ratified and affirmed the same,
From this order of the county court the widow and George W. Baker appealed to the circuit court for Eacine county. ‘The notice of appeal reads as follows:
“ In re Estate of William Baxer.
“ To Eíbert 0. Ha/nd, County Judge, and James Baker, Executor, ete.: Please take notice that Mary Ann Baker and George W. Baker, legatees under the above-mentioned will, do appeal to the circuit court for Eacine county, in the state*386 of Wisconsin, from the final order or decree of this court assigning the property of said estate under said will, and discharging the executor from his trust, bearing date April 1, 1878, for the following reasons, to wit:
“ 1. The county court erred in construing the said will by holding that a certain quantity of wool, being about 1,131 pounds, which was at ‘ the home farm,’ so called in said will, did not pass to .George W. Baker under the said will, and by holding and assigning the same to James Baker under the residuary bequest in said will.
“ 2. The court erred in its order made in the course of the administration of said estate, bearing date March 18, 1878, wherein the court modified orders previously made, allowing the sum of $50 per month to the said Mary Arm Baker during the settlement of said estate for her support, and allowing her the sum of $800 in lieu thereof.
“ 3. The court erred by said order wherein it ratified and confirmed the account of said executor, and discharged him from all further liability as such executor, when it appeared by said account, and from testimony taken on said accounting, that said James Baker, executor, had failed to execute said will, and'had failed to comply with the orders of this court by neglecting to pay over to said Mary Arm Baker any of the rents, income, and profits of one third of all the real estate of which said William Baker died seized, bequeathed to her by said will, and by neglecting to pay to said Mcury Ann Baker the sum of $50 per month for her support during the settlement of said estate, as he was required to do by the several orders of this court, and by failing to pay the sum of $800 for her support, as he was required to do by the order of this court, bearing date March 18, A. D. 1878.”
Upon the trial of this appeal in the circuit court for Racine county, that court made the following findings of fact and conclusions of law: The first finding of fact relates to the
The circuit judge filed the following conclusions of law: The first relates to the ownership of the wool, and is not material in this case. “ 2. That the appellant Mary Ann Baker is entitled to an allowance in full during the settlement of said estate of $800. 3. That James Balter is liable to pay Mary Ann Balter, as and for her. third part of the rent aforesaid of the said Yorkville farm, the sum of $853.33, and that said executor upon such payment, and not until then, is entitled to a discharge as such executor. 4. That the costs incurred herein should be paid by' the parties respectively incurring the same.”
Upon these findings judgment was entered in the circuit court, dated May 11, 1880. The judgment first declares that the wool belongs to the estate of the deceased, and to Jcwnes Baker as residuary legatee, and not to George W. Baker; second, “ that Ma/ry Ann Balter have and recover
Upon the determination of that appeal by this court, the finding of the circuit court as to the ownership of the wool, and the value of the use of the one third interest of the widow in the Yorkville farm, and the liability of the executor, as such, to account to the widow for such value before he could be discharged or make a final settlement of the estate as executor, was in all respects affirmed, except that this court held that the executor should pay interest on the rent due to the widow for each separate year’s rent from the end of the year to the time of payment; and that part of the findings of fact of the circuit court which found that no order for a further allowance for the support of the widow during the settlement of the estate was made by the county court on the 13th day of November, 1877, was reversed, and the conclusion of law that Mary Ann Balter was entitled to an allowance in full, the sum of $800, and no more, was also reversed. Upon the question as to whether an order of allowance wras made to the widow by the county court on the 13th day of November, 1877, this court held that such an order had been made by said court. In the opinion on that appeal the present chief justice says: “ There is no possible room for doubt that an order was made and announced allowing the widow $50 per month from the 23d day of March, 1877,
The effect of the decision of this court on the former appeal, reversing the decision of the circuit court and remitting the cause with directions to enter a judgment in accordance with the opinion, was to direct the circuit court to enter an order or judgment directing the county court to vacate the order of settlement made in favor of the executor, so far as such order of settlement failed to provide for the payment of the four years’ rent due from the executor to the widow for the use of the Yorkville farm, with interest upon the amount found due for the annual rent from the end of the year when it became due to the time of payment, and so far as such order failed to direct the executor to pay to the widow $50 per month from the 23d day of March, 1877, to the date of such settlement. No other matters involved in said settlement and distribution of the estate were reversed or changed by the order of this court. All other matters seem to have been properly adjusted.
"We think the order made by the circuit court on the re-mittitur from this court should have been restricted to the matters in issue between the widow and the executor, and that neither the order of distribution nor the order of settlement as to other parties should be disturbed. This court on the former appeal substantially instructed the circuit court to enter judgment directing the county court to vacate so much of the order of settlement and distribution as discharged the said executor from his duties as such executor, and as adjudged that his accounts had been properly settled and adjusted as between the appellant and Mary Arm Balcer, and to allow the claim of the widow against said executor for her allowance at the rate of $50 per month from the 23d
Upon this appeal the learned counsel for the appellant has started a new question in the case, and made a very able and critical argument to prove that the county court had no authority to make any allowance to the widow in this case at any time, and it is therefore immaterial whether the court in fact made such an order or not. If made, it was simply void. The argument is that under the provisions of sec. 3935, R. S., no allowance can be made to a widow in any case when the deceased has died testate, and by his will disposed of all his property, both, real and personal, unless the widow renounces all rights under the will.
The first and plain answer to this argument is that the
The fact that the point now raised was not argued on the former appeal in this court cannot affect the question. This court has decided in this case that the widow is entitled to her allowance. If the court erred, it is unfortunate for the appellant. If his case was not fully presented on the former appeal, it is his fault. ¥e are not aware that there is now any way to avoid the effect of the decision made. The only remedy we know of for correcting the errors of this •court is by application for a rehearing in the same case. We cite below some of the numerous decisions in this court, showing that the question of the right of the widow to an allowance in this case is res adgudioata, even though the county court had no jurisdiction over the subject matter of her application for such allowance. This court has substantially held on the former appeal that such court had the power to make such allowance, and that determination is binding upon the parties to the action, however erroneous it may be.
Upon the merits of the objection urged by the learned counsel for the appellant, that under the provisions of the first paragraph of said sec. 3935, R. S. 1878, the county court had no authority to make an allowance for the widow out of the estate of the deceased, we are of opinion that it is not well taken. That part of the section relied upon reads as follows: “ When any person shall die possessed of any personal estate, or of any right or interest therein, not lawfully disposed of by his last will, the same shall be applied and distributed as follows.” This declaration is followed by seven separate paragraphs, the first of which gives to the widow her apparel and ornaments, and the apparel and ornaments of the deceased, household furniture not exceeding $250 in value, and other personal property not exceeding $200 in value; the second gives a reasonable allowance to the widow and children, or either, constituting the family of the deceased testator or intestate, out of the personal estate or the income of the real estate, etc., for their maintenance during the settlement of the estate, limiting the time during which the allowance shall be made until their shares be assigned to them, or, in case the estate be insolvent, to one year after granting letters testamentary or of administration; the third provides that when a person shall die testate or intestate, leaving children under seven
“ The residue, if any, of the personal estate of any intestate, and the residue of the personal estate of a testator, not disposed of by his will, and not required for the purposes here-inbefore mentioned in this section,.shall be distributed in the same proportions and to the same persons and for the same purposes as prescribed for the descent and disposition of real estate in chapter one hundred and two, except that when the deceased shall leave a widow and lawful issue, the widow shall be entitled to receive the same share of such residue as a child of such deceased.”
The seventh paragraph of said section prescribes what shall be done with such personal estate when there shall be no known heir or distributee. Secs. 3936, 3937, and 3938 all relate to the estates of unknown heirs or distributees. Secs. 3939 and 3940 read as follows:
“Sec. 3939. Before any partition or division of any estate among the heirs, devisees, or legatees, an allowance shall be made for the necessary expenses for the support of the children of the deceased under seven years of age until they attain that age; and the county court may order the execu*394 tor or administrator to retain in his hands sufficient estate for that purpose, except where some provision shall have been made by will for their support.
“Sec. 3940. After the payment of the debts, funeral charges, and expenses of administration, and after deducting all the allowances provided for in this chapter, or when sufficient effects shall be reserved in the hands of the executor or administrator for the above purposes, the county court shall, by an order or judgment, assign the residue of the estate, if any, to such other persons as are by law entitled to the same. In such order or judgment the court shall name the persons and the part to which each shall be entitled. Such persons shall have the right to recover their respective shares from the executor or administrator, or from any person having the same. Such ord.er or judgment may be made on the application of the executor or administrator, or of any person interested in the estate.”
The sixth subdivision of said sec. 3935, and secs. 3939 and 3940, are inconsistent with the construction sought to be placed upon the first paragraph of said sec. 3935 by the learned' counsel for the appellant. If there be any inconsistency or conflict between the first paragraph of the section above referred to and thé provisions of subsequent paragraphs and sections thereof in the same chapter, then under subd. 15, sec. 4972, R. S., 1878, “ the section which is last in numerical order shall prevail, unless such construction be inconsistent with the meaning of the chapter.” By reading the first paragraph of said sec. 3935 in immediate connection with the sixth subdivision, it is plain that the first paragraph must be construed as though there was added to it the following clause: “ After the payment of the allowance to the widow and minor children, hereinafter mentioned, and the expenses of administration, funeral charges, and debts of the deceased.”
The paragraph above quoted has reference only to the dis
This provision of law has been in our statutes since the revision of 1849, and possibly before. It was clearly borrowed from the laws of Massachusetts, where it was adopted certainly as early as 1836. See R. S. of Mass., 1836, ch. 64, sec. 1. The first paragraph of said sec. 1 is as follows: u When any person shall die possessed of any personal estate, or any right or interest therein, not lawfully disposed of by his last will, the same shall be applied and distributed as follows.” It will be seen that there are verbal differences in the statute of this state and the statute of Massachusetts above quoted, but they are substantially the same. This opening clause of ch. 64 of the Massachusetts law is immediately followed by a subdivision of the same section, making provision for an allowance to the widow of certain household furniture, necessary for the use of herself and
By the GouH.— The judgment of the circuit court is reversed, and the cause remanded with directions to render a judgment in accordance with the directions of this court in its former opinion, as construed by this court in this opinion; the costs of this appeal to be paid out of the estate.