107 Wis. 64 | Wis. | 1900
On April 5, 1866, John Hess, of Milwaukee, duly executed his last will and testament, wherein and whereby he purported to give to his wife, Regina, all his personal property absolutely, and also the use of his real estate for the term of twenty-five years after his death, subject to the payment by her of all taxes and assessments thereon during such term; and the remainder of such real estate he devised, the undivided one-half to the children of his daughter, the plaintiff Crescentia C. Huebschmann, and the other undivided one-half to the children of his son, Philip Hess, then living in Louisiana, and named his widow, Regina, as executrix of his will. John Hess never had any other children. On October 26, 1866, the son, Philip, died in New Orleans, leaving, him surviving, a widow, who died during the. following year, and also a little boy, John Hess, who died a few months after'his father, Philip, and also a daughter, Susannah, who was born December 1, 1862, and who was consequently nearly four years of age when her father, Philip, died. On April 30, 1810, the testator, John Hess, died at his home, in Milwaukee, leaving, him surviving, his widow, Regina, also his daughter, the plaintiff in error, Grescentia G., and her four children, plaintiffs in error in this action, and his granddaughter Susannah Hess, daughter of his deceased son, Philip. On November 14, 1810, such will of John Hess was admitted to probate in the county court of Milwaukee county, and the widow, Regina, was appointed such administratrix. On May 13, 1811, the widow, Regina, intermarried , with one Ferdinand Thoma, and
May 6, 1884, the granddaughter Susannah and Frederick Roth filed their petition in the county court, reciting the facts stated, and praying for the final adjustment and settlement of all matters and things pertaining to the estate of John Hess, deceased, and for the construction of such will, and the determination of the rights and interests of the parties interested, and that the residue of the estate be assigned to the persons entitled to the same. Thereupon, and on May 7, 1884, the county court made an order in the matter of such will that such application be heard at the time and place therein named, and that notice of such application and hearing be given to all persons interested, by the publication of a copy of such order for three successive weeks, once in each week, prior to such hearing, in the newspaper therein named. Due proof of such publication was filed in the county court in such matter May 31, 1884. Thereupon Emil Wallber, then an attorney at law in Milwaukee, appeared for two minor children of the daughter {Francis and Anna), plaintiffs in error herein, and by their guardian, Gustave Reuss, put in an answer for them to such petition, and, among other things, therein alleged, in effect, that the estate of John. Hess, deceased, had not been fully administered; that no account had been rendered either by the executrix or by the administrator de bonis non; that no vouchers had ever been presented of the payment of the debts and funeral charges of the deceased; that Susannah
Ón June 14, 1884, the daughter, Crescentia C., one of the plaintiffs in error herein, and the widow, Eegina, were cited by the county court to appear at a time and place named, then and there to answer such questions as might be put to them relative to the matters then in issue in such estate. Thereupon commissions were issued and testimony taken in New Orleans in respect to the paternity and legitimacy of the granddaughter Susannah, and after full hearing of all parties in the county court, and on January 3, 1885, the county court made its final order, judgment, and decree, reciting therein, in effect, that it being satisfactorily made to appear that due notice of such hearing had been given as required by law and the former order of the court; that the facts stated in the petition of Susannah and Eoth were true, ■.and that all the debts and expenses of last sickness, funeral charges, and expenses of administration up to that time had been paid; that no personal property remained in the hands of the former executrix and administrator de bonis non for •distribution, and that there was no necessity for any further ■■administration or continuance of the estate in court; that ■the testator died seised in fee simple of the lands described; that the only children of the daughter, Crescentia C., were the plaintiffs in error herein, Adoljph, Amalia, Francis, and Arma, the two last named being minors, who had appeared therein by Gustave Reuss, their general guardian, Hon. Emil Wallber, an attorney of that court, acting as counsel; that Susannah La Place, of New Orleans, was the sole child and heir at law of Phillip Hess, the son of the testator, and that all her right, title, and interest in and to the real estate of which the testator died seised had, by deed of conveyance dated December 3, 1883, for a valuable consideration, been
On April 29,1895, the plaintiff in error Orescentia 0. filed her petition in the county court in such matter, praying that so much of the order, judgment, and decree so entered January 3, 1885, as adjudged that Frederick Roth, as the assignee of Susannah La Place, was entitled to one undivided half interest in and to the real estate described, be declared null and void, and that Frederick Roth and the defendant in error herein, Frederick W. v. Cotzhausen, be cited to appear before such court and show cause why such order and decree should not be adjudged null and void, and why an order should not be entered assigning to her, as the heir at law of John Hess, the undivided one-half so assigned to Frederick . Roth; and thereupon Frederick Roth and Frederick W. v. Cotzhausen were cited to appear and answTer such petition at a time and place therein named, and they so appeared, respectively, and went to trial.
Upon such hearing, and the records, evidence, and proofs
On June 27, 1895, the plaintiff in error, Crescentia C., appealed from such judgment to the circuit court. Upon the trial and hearing of such appeal in the circuit court it was found by that court “ that the county court had full jurisdiction of parties and subject matter when entering its decree of January 3, 1885; that the evidence and proofs submitted utterly failed to support the material allegations of the appellant’s petition,” and, as conclusions of law thereupon, the court held “ that the order appealed from ought to be affirmed, and that judgment be entered accordingly, with costs to be taxed in favor of the respondents.” Judgment was thereupon entered accordingly. Crescentia C. appealed from that judgment to this court, and the judgment was affirmed October 22, 1897. Will of Hess: Huebschmann v. Cotzhausen, 97 Wis. 244.
The term of the widow, Regina, fully expired April 30, 1895. On December 17, 1897; the defendant in error, Frederick W. v. Cotzhausen, commenced this action of ejectment against Crescentia C. and her four children named, and one Herman Valet and one Lydia Webber, to recover the undi-
At the close of the trial the jury returned a verdict to the effect: (1) That Susannah La Place was the legitimate child of Philip Hess. (2) That the fair rental value of the premises in question, entirely free and clear of all buildings, during the period from May 1, 1895, to the date of such verdict, would have been nothing. (3) That the jury found for the plaintiff, that he was the owner of an estate in fee simple and had a right to recover the possession of an undivided one-quarter of the premises therein described; that the defendants had unlawfully withheld the possession thereof from the plaintiff ever since May 1, 1895, and were in the joint possession thereof; and that they assessed the plaintiff’s damages for the unlawful withholding thereof at the sum of six cents. Thereupon, and on June 19, 1899, judgment was entered on such verdict in favor of the plaintiff therein, Frederick W. v. Cotzhausen, and against Crescentia C. and her four children, Adolph, Amalia, Francis, and Anna, and also against the defendant therein, Herman Valet. To reverse that judgment the defendants therein, Crescentia C. and her four children, Adolph, Amalia, Francis, and Anna, sued out this writ of error.
The principal controversy in the trial court was as to whether Susannah La Place was the legitimate child of Philip Hess, deceased. Other questions involved were made
But there is still another reason why such judgment and decree is binding upon Crescentia C., who is the only one of the plaintiffs in error interested in the question of the legitimacy and heirship of Susannah La Place. Ten years after the rendition of that judgment and decree, the plaintiff in error Crescentia C. filed her petition in the county court in such matter to set aside and have declared null and void so much of such judgment and decree as adjudged that Eoth, as such assignee, was entitled to the undivided one-half of such residue of such estate. Thereupon Eoth and the defendant in error were cited to appear and answer such petition, which they did, as stated. Upon the trial of that issue the county court found, in effect, as indicated, that the court had not been imposed upon in the making of such final judg. ment and decree; that neither Eoth nor the defendant in error had been guilty of any frauds or evil practices in the matter; that Susannah Was the sole child and heir at law of Philip Hess, and entitled to the real estate so assigned to her, and that the court had full jurisdiction of the subject matter and of all the parties interested; and that the judgment and decree should not be disturbed. The plaintiff in error Crescentia C. then appealed from the judgment entered thereon to the circuit court, where such issues were retried; and at the close of such trial the judgment of the county court was in all things affirmed by the circuit court, and
We perceive no error in refusing the request of the plaintiffs in error to have the jury assess the value of the improvements made and taxes paid by them. It appears from the undisputed evidence that the amount of rents and profits received by them during the term of their adverse possession exceeded the amount paid by them for repairs, improvements, and taxes, and that the net balance in their hands ■after making all such payments was $694.75.
The defendant in error has suggested a question of practice which we do not feel at liberty to pass over in silence. Mrs. Webber, who was made a defendant in this action of ■ejectment, abandoned the premises pendente lite, and so the notion as to her was discontinued. But the defendant Valet, in ejectment, who, as indicated in the statement, is conceded to be in the actual possession of a portion of the premises as tenant of Crescentia C. and her four children, remained .such defendant, and the judgment is against him and the other -defendants. Yalet was a necessary defendant in the action of ejectment. Secs. 3075, 3076, Stats. 1898. But he did not join in suing out this writ of error. It was held by our territorial court that “ a writ of error must be brought in the names of.all the parties against whom the judgment was .given, and, if the writ does not agree with the record in this respect, it may be quashed.” Doty v. Strong, 1 Pin. 165. To the same effect, Fotterall v. Floyd, 6 Serg. & E. 315; Hampton v. Rouse, 13 Wall. 187; Pearson v. Yewdall, 95 U. S. 294; Feibelman v. Packard, 108 U. S. 14. But
By the Ooxvrt.— The judgment of the superior court of' Milwaukee county is affirmed.
