35 N.W.2d 203 | Wis. | 1948
This is an action commenced on May 1, 1948, by William J. Glojek, Joseph L. Glojek, and Ferdinand A. Glojek, plaintiffs, against Jennie Glojek and Virginia King, defendants. The complaint stated that plaintiffs are the three sons and only children of Ferdinand Glojek, deceased; that in 1947 deceased was a widower, sixty-two years of age, who had retired after accumulating real and personal property of the value in excess of $50,000, the most valuable item of which was a parcel of land with a building located in West Allis worth at least $20,000; that in 1947 deceased contracted a marriage with defendant, Jennie Glojek; that at this time deceased was suffering from an incurable ailment; that deceased entered into a prenuptial agreement limiting the amount of his estate which would go to Jennie Glojek upon his death and on information that it was his intention that three fourths of the property should go to plaintiffs and one fourth to his wife in accordance with the antenuptial agreement; that during the period when he was extremely ill, under drugs and medication and susceptible to undue influence, he and defendant, Jennie Glojek, executed a quitclaim deed of the real estate to defendant, Virginia King, who, on the same day executed a quitclaim deed of the same premises back to him and defendant, Jennie Glojek, as joint tenants; that on the same day deceased executed a will leaving his household furniture and personal effects to Jennie Glojek and the residue of his estate, one fourth to Jennie Glojek, and one fourth to each of the three plaintiffs; that the deed of decedent was secured by undue influence on the part of Jennie Glojek; that at this time decedent was greatly weakened in mind and body and susceptible to undue influence; that Jennie Glojek was in constant attendance upon him; that she knew that a plan for the disposition of his estate had theretofore been entered into and that the quitclaim deed in question was the consummation of a *111 plan and course of action conceived and carried on by Jennie Glojek to obtain for herself the major part of the assets of her husband when he was on his deathbed.
Defendants demurred to this complaint and an order was entered on July 8, 1948, overruling defendants' demurrer. Defendants appeal.
The argument of defendants can be very simply put: This court in a number of cases has held, (1) that undue influence is a species of fraud; Will of Grosse,
"Though the deed was voidable by Emma Zartner, it was effectual to vest her title to the premises in her grantee until it was voided by her, and her death, without rescission, must have the same effect as though she had affirmed it in her lifetime. All power to disturb the title to the premises died with her . . . .
"The right of rescission is one personal to the defrauded party, and no action or right of action to recover the possession of real estate or to set aside the conveyance of land arising in cases such as this exists until the person defrauded has exercised this right of rescission. Melenky v. Melen,
It is the contention of plaintiffs, (1) that under the facts involved in the Holzhauer Case the court had no occasion to make any ruling upon the point and that the opinion expressed in the above quotation is dictum; (2) that the HolzhauerCase, if construed to hold as indicated in the quotation is wrong and contrary to all previous authority in this state and to all authority in the country at large; (3) that in case the court determines to adhere to the doctrine of the HolzhauerCase its application should be limited to ordinary fraud cases where the decedent is of sound mind and not under undue influence and where he could be considered to have had a chance to disaffirm which he did not take. It is asserted that in cases of undue influence the very nature of the fraud is likely to guarantee that there will be no subsequent disaffirmance. After a careful restudy of the matter we conclude that plaintiffs are right and that the dictum in the Holzhauer Case was erroneous. In Davis v. Dean,
In Somervaill v. McDermott,
Thereafter two of the devisees commenced an action but deliberately elected to waive rescission and to seek damages. This case came to this court in Zartner v. Holzhauer,
"The specific legal question involved is whether the plaintiff, as a residuary legatee of the estate of Emma Zartner, deceased, may maintain in his own name an action to recover a fractional part of the damages alleged to have been sustained by Emma Zartner during her lifetime because of fraud and deceit practiced upon her by the defendant."
Since rescission was not sought, the only question before the court was whether the right to recover damages belonged to the devisee or to the administrator. The court reaffirmed the rule that equity will afford relief at the suit of heirs to quiet their title in real property, the title to which is held by another under circumstances giving rise to a constructive trust. (p. 22):
"This relief is not afforded on the theory that it is a right which survives, although it is said that remedies administered in equity do not die with the person. The law devolves such title as the ancestor may have had in and to the real estate upon his heirs, and, as said in Walling v. Thomas,
The court thereupon made the statement criticized by plaintiffs that although the deed was voidable by the grantor it would vest title in the grantee until it was voided by her and that her death without rescission had the same effect as though she had affirmed it in her lifetime. "All power to disturb the title to the premises died with her."
Since the Holzhauer Case two cases have reiterated the statement. The first was Krueger v. Hansen,
By the Court. — Order affirmed. *117