59 Wis. 260 | Wis. | 1884
The court found that the note and mortgage of $1,500, executed by Caroline, and here sought to be foreclosed, had been released and discharged by her father during his life-time. By his will the testator left to Caroline a legacy of $2,000, and it is claimed that she is entitled to this amount, and that, in addition, the note and mortgage must be regarded as released.
Parol evidence was given on both sides, and some excluded. Prior to the statutes requiring wills of personal as well as real property to be in writing and formally executed, a very wide range was given, especially by the ecclesiastical courts of England, in admitting receipts, letters, statements, memoranda, and declarations of the testator, as indicative of testamentary acts. 1 Redf. on Wills, 542. Since the statutes (sec. 2282, R. S.) the field of inquiry has been very much narrowed and simplified, so that, as a general rule, extrinsic evidence cannot be received either to explain or vary the written instrument. 1 Redf. on Wills, 566, 596; 2 id., 442; Doe dem. Hiscocks v. Hiscocks, 5 Mees. & W., 363; Horwood v. Griffith, 4 De G., M. & G., 700; St. Luke’s Home v. Ass’n for Indigent Females, 52 N. Y., 191; Morgan v. Burrows, 45 Wis., 211. Of course, such evidence is often resorted to in case of wills (as well as deeds) for the purpose of placing the court in the position of the testator, so as to more intelligently interpret the language used. Ibid.; 2 Redf. on Wills, 183; Morgan v. Burrows, supra; Messer v. Oestreich, 52 Wis., 689; Martin v. Drinkwater, 2 Beav., 218;
Here the will went into effect immediately upon the death of the testator, and disposed of all the property he then possessed, both real and personal. The amount of the legacy so given by the will to Oaroline must therefore, necessarily, be her full share of the property which her father possessed at the time of his death. The alleged release of the note and mortgage was not executed by the testator after the making of his will, and hence the question is not presented whether such release operated, presumptively or otherwise, as an ademption of the legacy pro tanto, within the rule laid down in many cases. Rosewell v. Bennett, 3 Atk. Ch., 77; Aston v. Pye, stated in the opinion of the chancellor and a note to Eden v. Smyth, 5 Ves. Jr., 341; Trimmer v. Bayne, 7 Ves. Jr., 515; Monck v. Lord Monck, 1 Ball & B., 304; Ex parte Pye, 18 Ves. Jr., 140; Pym v. Lockyer, 5 Myl. & C., 29; Kirk v. Eddowes, 3 Hare, 509; Dawson v. Dawson, L. R. 4 Eq. Cas., 504; Nevin v. Drysdale, id., 517; Rogers v. French, 19 Ga., 316; May’s Heirs v. May's Adm'r, 28 Ala., 141; Zeiter v. Zeiter, 4 Watts, 212; S. C., 28 Am. Dec., 698; Richards v. Humphreys, 15 Pick., 133; Clendening v. Clymer, 17 Ind., 155; Degraff v. Teerpenning, 52 How. Pr., 313; Van Houten v. Post, 32 N. J. Eq., 709.
As suggested, the release was executed by the testator about two weeks prior to the time he executed the will. He never delivered it to Caroline, nor any one in her behalf, but retained it in his own possession until the time of his death. Did the mere fact of its execution operate instanter as a discharge, satisfaction, and extinguishment of the note and mortgage? If it did, then it is very certain that the note
On the other hand, it has been held, by courts of great ability, that a mere naked legacy to one indebted to the testator at the date of the will, with nothing upon the face of the instrument to • indicate the contrary, raises a mere presumption that such legacy was not intended as a release or extinguishment of the debt, and hence that such presumption may be overcome by extrinsic evidence. Zeigler v. Eckert, 6 Pa. St., 13; S. C., 47 Am. Dec., 428; Wilmot v.
Where a legatee named in a will is actually indebted to the 'testator by note and mortgage at the time of making the will, and continues to be so indebted up to the time of the testator’s death, and there is nothing in the will to indicate an intention to release, satisfy, or extinguish the debt, and in addition give to the debtor the whole amount of the legacy, it may be, and to my mind is, a serious, if not a very doubtful, question, whether, since the statute requiring wills of personal property to be in writing and formally executed, extrinsic evidence should be admissible to prove such unexe-cuted intention to satisfy and extinguish the debt, and thus correspondingly increase the amount of the legacy. But it is unnecessary here to determine the question, for assuming that such evidence was admissible, and assuming for the present, also, that the execution of the release was -not a satisfaction and extinguishment of the note and mortgage, still there is no evidence of anything said or done by the testator at the time of making the will, nor at any time thereafter, sufficient to rebut the presumption that the legacy was not intended to be paid in full, nor to rebut the pre
But the doubt above indicated does not at all trench upon the right of showing by parol evidence that a testator during his life actually surrendered, satisfied, and extinguished a debt in favor of himself and against one who turns out to be a legatee. The question, therefore, remains, whether the release executed prior to the will was, in fact, a satisfaction and extinguishment of the note and mortgage. The learned counsel for the defendants strenuously contend that the release was binding upon the father and his estate as a voluntary settlement, notwithstanding it was never delivered. In support of this, counsel cite Perry on Trusts, and numerous cases there cited, to the effect that if a party exedute a voluntary settlement by deed it will be binding upon the settlor, although he never parts with it, but keeps it in his possession until his death. Secs. 103, 104. In some of these cases there were deeds of trust; in some the deeds were delivered to or for the benefit of the person intended; in some the deeds remained in the possession of the maker, with direction to some one to deliver or record; in some the deed was direct to the beneficiary; and in some it was held that the seal imported a consideration, the recitals a delivery, and the benefit implied an accéptance. These cases have a bearing upon the questions here involved, but seem to be too remote to-require specific analysis. To indicate the more recent rulings of the English courts, it may be well to mention specially In re Way’s Trusts. 2 De G., J. & S., 371, and the cases cited in Garnsey v. Mundy, 24 N. J. Eq., 243.
In Wilmot v. Woodhouse, 4 Brown Ch., 227, the court seemed to be of opinion that the testator did not mean to
In Byrn v. Godfrey, 4 Ves. Jr., 6, the testator had declared to his executor that he never meant to call for payment of a promissory note which he held against his debtor, but it was held to be a part of the assets of his estate, which were insufficient for the legacies,— a charge on the real estate having failed for want of a proper attestation of the will. The lord chancellor observed: “ It is not an actual release at any one given time, so that I can state that the debt was gone by the act of the person to whom it was due; nor is it a legacy. . . . I wish I could have decided the other way, for it is clear what the intention was; but the great danger of the case makes it impossible.”
In Tufnell v. Constable, 8 Sim., 69, the testator held a bond against T. for £1,200, and indorsed and signed thereon these words: “I do this day forgive the Rev. T. the sum of £700, part of the within-named sum of £1,200, for which he is indebted to me; and I hereby acquit him of this bond upon the payment of the sum of £500, with interest upon the whole till the same be paid off. In consequence of this gift I have revoked, by codicil of this date, a former bequest to the amount of the said sum of £700.” Subsequently, he made another will, which was admitted to probate, but it contained no reference to the plaintiff; and it was held that the release was without consideration, and could not be sustained in equity.
In Chester v. Urwick, 23 Beav., 404, the testator left a legacy of £1,000 to K. E. B., who was at the time indebted to him upon a bond. Afterwards the testator drew out in his own handwriting a list of legacies which he proposed to give, by way of a codicil to his will. In this list he proposed to give R. F. B. £8,000, to be made up in part by the bond and the .above legacy, but which codicil was never exe-
In Pennsylvania it was held that, in order “ to discharge a debt due on promissory notes, by way of gift to the debtor, a release under seal, or for a consideration, or an actual delivery or cancellation of the notes, is essential. An intent so to do, or instructions given for the delivery up or destruction of the notes, will not suffice, though shown to have existed when the creditor was making distribution of his estate, and the debtor was a favorite nephew.” In re Campbell, 7 Pa. St., 100. This was followed in McGruire v. Adams, 8 Pa. St., 286, where it was held that repeated declarations of satisfaction and refusals to receive pay by a stepmother did not release a debt from her stepson.
In Milroy v. Lord, 4 De G., F. & J., 274, the question was whether a voluntary settlement had been created merely by a gratuitous and voluntary deed-poll, executed and retained by the settlor; and Lord Justice Turnee observed that the' law was “ well settled, that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him.” That language was quoted and sanctioned in Warriner v. Rogers, L. R. 16 Eq., 340; S. C., 6 Eng. (Moak), 781. There it was said to be the one indispensable thing to give validity to a declaration of trust, “ that the donor or grantor, or whatever he may be called, should have absolutely, parted with that interest which had been his up to the time of the declaration; should have effectually changed his right in that respect and put the property out of his power, at least in the way of interest.” Both of these cases, and the language quoted, .were expressly
The same principles are sanctioned by a late and well-considered case in New York, where the intestate placed bonds in two envelopes, and indorsed and signed thereon a memorandum that they belonged to his sons in specified proportions; but it was held not to constitute a valid gift because there was no delivery, nor a declaration of trust. Young v. Young, 80 N. Y., 422. The rule thus stated, as to the necessity of delivery, is in harmony with the expressions of this court as to gifts causa mortis. Wilcox v. Matteson, 53 Wis., 23.
Here the testator made certain advances to his children in May, 1876. The notes and mortgages in question were taken by him in the name of Salome, as her share of such
In Merkel's Appeal, 89 Pa. St., 340, it was held that an “advancement is a question of intent; that intent must be proved to have existed at the time of the transaction, and by the cotemporary acts and declarations of the parties. Yerbal declarations of a parent that money for which he held a note or bond against a child was intended as an advancement are insufficient to establish it. They must be shown to be a part of the res gestae, and accompanying the acts done.” Watkins v. Young, 31 Grat., 84.
The releases never took effect as such for want of delivery. They could not operate as declarations of trust, because they did not contain the requisite expressions for that purpose. For the reasons given, we must hold that the notes and mortgages were existing and valid claims against the makers, respectively, at the time of the testator’s death, and passed to his executor as a part of his estate. We do not think, however, that there should have been any foreclosure of the note and mortgage. The estate seems to be solvent, and the equities of the respective parties can readily be adjusted in the probate court. There can be no question but what the executor has the right to deduct, from the legacies to Caroline and Jacob, the amounts of the notes and mortgages against them, respective^. Courtenay v. Williams, 3 Hare, 539; Rose v. Gould, 15 Beav., 189; Rickets v. Livingston, 2 Johns. Cas., 97; Strong’s Ex’r v. Bass, 35 Pa. St., 333.
By ike Court.— The judgment of the county court is reversed, and the cause is remanded with direction to dismiss