152 Wis. 482 | Wis. | 1913
Frederick Horn died June 2, 1907, on bis faina in Washington county, leaving seven sons and daughters as his sole heirs at law and legatees. His wife had died in 1897. For about thirty years prior to his death he had been a paralytic and was unable to do manual labor. During the last years of his illness he occupied his bedroom on the see-ond floor of his home, being brought downstairs and out of the house only a' few times a year. His sons had lived at home 'and worked on his farms until they married. At the time of his death his children, with the exception of Louis, the youngest, had all married and left the home. After the marriage of his brother Charles in 1899, Louis, alone of the children, worked upon and managed the two farms owned and retained by his father.
By the will of Frederick Horn the homestead farm of seventy acres, valued at $7,000, was given to the son Louis absolutely. The will provided for the payment of the debts, funeral expenses, and the expense of a monument out of the personal property, if it should be sufficient If the personal property should be more than sufficient to pay these items, the balance was to be divided equally among the children. A forty-acre tract of land belonging to Frederick Horn was devised to Louis, charged with the payment of $2,000 to the children. If the personal property left by the deceased should be insufficient to pay the debts, funeral expenses, and the expense of a monument, then the additional amount needed for these purposes was to be paid out of the $2,000 charged upon the forty acres devised to Louis, and the balance thereof, after payment of $650 specifically devised, was to be divided equally between the seven children of the deceased.
The administrator included in his inventory all of the personal property found on the farm of the deceased. This personal property was appraised at $1,503. Louis claimed that some of this personal property belonged to him and petitioned the county court to strike the articles claimed by him from
A granddaughter of the deceased, who lived with and kept house for him from the time his wife died in 1891 to the time of his death, testified in circuit court that on an occasion shortly after the marriage of the son Charles, just after Charles and the son Louis had been with the deceased in his room upstairs, she carried up a lunch to her grandfather, and her grandfather then told that he had divided the horses on the farm with his two sons, that he had retained two colts, Charlie had taken three bay horses, and that Louis had what was left, two old mares and the bay colt. She testified that she knew that her grandfather had sold the two colts retained by him and that he told inquiring prospective purchasers of horses that they belonged to Louis. She ’also testified that she had seen the horses given to Charles on Charles’s farm, that she knew of Louis buying a platform spring wagon, that sometimes her grandfather and sometimes Louis paid the bills on the farm, that Roms .bought and sold the grain and cattle on the farm and did what was required to run the farm affairs.
Henry Leverenz, who had worked on the farm of the deceased for four years, testified that the deceased had told him that there had been a division of the horses between him and his sons.
■ Louis Horn testified that a broncho gelding which was on the fai’m at the time of his father’s death had been purchased by him, that he borrowed the money to pay for him from his sister, gave her his note for the amount borrowed and afterward paid the amount, and that the note was not signed by his father. The vendor of the horse testified that he had sold the horse to Louis and that Louis paid him for the horse.
There is evidence in the case that Frederick Horn stated to an employee that the horses on the farm belonged to Louisj to a grandson that all the horses with one exception, called “Diamond,” belonged to Louis; and to the owner of á factory near the farm, referring to “Diamond,” that that was the only horse he owned. Louis also testified that he had sold two colts to the husband of a niece and took a note for them. The husband of this niece testified that he had purchased the colts from Louis and gave his note for the purchase price, that when he went to pay the note Louis was not at home, and that when he told Frederick Horn what he wanted, Frederick Horn told him he could leave the money there.
There was evidence that Frederick Horn had a tin box in which he kept his will, valuable papers, and money; that Louis Horn had free access to this box; and that the contents of Frederick Horn’s will were known to his family from the time of its execution on November 9, 1899.
Louis Horn’s evidence concerning the disc harrow included in the' inventory is that he obtained it in exchange for the horse he purchased with money borrowed from his sister; that the seeder claimed by him was paid for with the money obtained from the sale of the sorrel team; and that the platform spring wagon had been paid for with money obtained from the husband of his niece by the sale of two colts to him. The harrow, the seeder, the wagon, and the horses are the
There is evidence that the personal property in dispute in tjhis case was assessed for taxes against Frederick Horn, that the assessor filled out the assessment blanks with Frederick Horn’s assistance, and that Louis Horn had referred the assessor to his father for information thereon. There was also eyidence that bills for horseshoeing were, at Louis Horn’s request, paid by his father.
It also appears that the children of Frederick Horn upon marrying had been given gifts of money and property by their father; that William Horn had received a deed to 166 acres of land from his father upon his marriage, that Charles Horn had received a deed to 117 acres of land from his father at the time of his marriage, and that the other children, except Louis, who was not married, had all received gifts of money from their father.
■ The circuit court found that Frederick Horn had not made the gift to Louis Horn of the mares 'and the colt claimed by him, and that all of the personal property included in the inventory of the administrator belonged to the estate of Frederick Horn, and entered an order reversing that part of the order of the county court striking out from the inventory the items of personal property which the county court had found to be the property of Louis Horn.
The foregoing statement contains the evidence of the witnesses who had personal knowledge of the declarations of the deceased and of the facts and circumstances showing the relations of the deceased and his son Louis and the way they conducted their affairs on the farm. There is no direct evidence contradicting this evidence. The contention is that the evidence adduced clearly preponderates to show and establish the fact that the deceased made a division and transfer of the personal property on his farm at the time Charles married and left his father’s place 'and that the deceased then
By the Court. — That part of the judgment appealed from is reversed, and the cause remanded to the circuit court with directions to enter a judgment affirming the order of the county court from which respondent appealed to the circuit court, and for costs to the respondent in said circuit court.