Hall v. Hall

98 Wis. 193 | Wis. | 1898

Cassoday, 0. J".

For tbe purposes of this appeal we shall assume that the will of George Hall, deceased, only gave to his widow, Sarah, a life estate in his property, whether real or personal, and that, subject to such life estate and a bequest mentioned, he thereby gave the remainder of his estate, both real and personal, to his nephew, the petitioner and plaintiff herein. That will was admitted to probate March 6, 1883. Such probate of the will was “ conclusive as to its due execution.” E. S. sec. 2291. The statute provides that after the payment of the debts, funeral charges, and all expenses, and certain allowances, “ the county court shall, by an order or judgment, assign the residue of the estate, if any, to such other persons as are ly laxo 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.” E. S. sec. 3940. “ The statute gives the county court, on final settlement of the estate, ample authority to assign the residue to such persons as are by law entitled to the same. . . . The statute manifestly intends that the order of assignment shall operate to transfer the legal title of the personal property to the persons therein named. It has in law really the same effect as an order of distribution.” Ford v. Smith, 60 Wis. 225. In fact, it seems to be the way especially provided by statute for a legatee or heir at law to acquire title to personal property. The legal title to such property, upon the death of the owner, goes to the executor or administrator. “ In any case,” said Eyajst, O. J:, “ when title to personalty comes to legatee or distributee, it comes from the executor or administrator, not from the testator or ancestor.” Estate of Kirkendall, 43 Wis. 179; Murphy v. Hanrahan, 50 Wis. 490; Marshall v. Pinkham, 52 Wis. 513; Melms v. Pfister, 59 Wis. 192; Miller v. Tracy, 86 Wis. 333.

Upon the record presented, we must assume that the facts, stated in the petition are all true and can'be established by competent evidence. This being so, it is manifest that at the time of settling the estate there was no contest nor dispute about the true construction of the will; that it was agreed and understood by counsel for the executors, the guardian ad litem for the plaintiff, and the judge of the county court,, that the order or judgment assigning the property as provided by the statute cited should be substantially in the language of the will; and that the same was so orally announced and rendered, but that by some inadvertence, misconception, or mistake, the order and judgment, as drawn by the attorney for the executors and actually signed and entered, were Substantially different, and gave the widow at least apparent authority to dispose of the whole estate, regardless of her necessities or comfort/ The plaintiff at that time was-only fourteen years of age. He learned that he was, under the will, only entitled to what remained after the death of the widow. She did not die until September 4, 1895. Assuming the facts to be as alleged, we are constrained to hold that they authorize the correction of the order and judgment so that the same will conform to the one actually pronounced and rendered. This ruling is supported by numerous adjudications of this court. Estate of Leavens, 65 Wis. 440; Beem v. Kimberly, 72 Wis. 344; Estate of O'Neill, 90 Wis. 480. Especially should this be so as to the real estate. The statute provides that, upon a will being admitted to probate, a duly attested copy thereof, and of the probate thereof, may be recorded in the register’s office, as a muniment of title of the lands, or any interest therein, thereby devised. R. S. sec. 2296. The statute also provides that “ every devise of land in any will shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.” R. S. sec. 2278. Under this statute this court has repeatedly beld that a residuary devisee tabes at once, on the death of the testator, all real estate devised tó him, subject only to the intervening-life estate. In re Estate of Pierce, 56 Wis. 560; Scott v. West, 63 Wis. 570; Prickett v. Muck, 74 Wis. 205; Hiles v. Atlee, 90 Wis. 72. Whether title to land so vested in a devisee by the plain and unambiguous language of a will can be subsequently divested by an order of the county court, under sec. 3940, R. S., is a question not necessarily involved, and upon which we express no opinion. See Ruth v. Oberbrunner, 40 Wis. 238; Appeal of Schæffner, 41 Wis. 260; Jones v. Roberts, 84 Wis. 471; Will of Hess, 97 Wis. 244.

By the Oou/ri.— The order of the circuit court is affirmed.