130 Wis. 560 | Wis. | 1907
The petitioner asks the court to authorize a sale of all the estates in remainder in the real estate described in the application, in which he is given a life estate by the will of his deceased father. The petition alleges that petitioner is unable to pay the charges against this property under the provisions of his father’s will; that because the title is held by various parties he is unable, by loan upon his interest, to obtain an amount to pay such charges; and that a sale of the estates in remainder would promote the interests of such owners by protecting them from threatened loss and possible destruction of their interests. Manifestly petitioner proceeds upon the theory that ch. 300, Laws of 1899, authorizes a sale of such interests in all cases wherein the court may find a sale to be substantially promotive of the interests of such parties. An attempt to grant such power to the courts, to in
“It is not doubted but that the powers of a court of equity are ample to prevent the destruction of the estate in remainder” under such circumstances. “Rather than that the scheme of the creator of such estate shall entirely fail by reason of some circumstance not foreseen by him and provided for, the court may intervene, but only for the purpose of preserving, and so far as necessary to preserve, the property. If it cannot be preserved in the form intended it may he preserved in its equivalent.” Cases cited in Ruggles v. Tyson, 104 Wis. 507, 79 N. W. 768.
To accomplish this result the interests in remainder are to be preserved, as nearly as the circumstances will permit, as the creator of them has provided. It is also established that there can be no separation of the interests of the life tenant from those in remainder and that the estate must be maintained in solido as intended and provided by the grantor to the time of distribution, unless the court encounters some insurmountable obstacle which prevents effectuating such a purpose. Applying these principles to the facts here presented, it is manifest that petitioner’s proceeding is erroneous in seek
It is also manifest that the facts and circumstances wholly fail to show any necessity for such a separation. It is apparent that if some disposition of an interest in the estate must be made for the purpose of obtaining funds to discharge the liens and claims against it for its preservation, it will in all probability be entirely feasible and practicable to obtain relief either by mortgaging the land to raise the required sum, or that a sale of a portion of the premises may be made and the proceeds applied to the payment of such liens and claims, and, in the event that the land cannot be sold in parcels, the whole may be sold and so much of the proceeds as may be required to free it from claims be appropriated to that purpose, and the remainder be kept in lieu of the real estate and held for the use and benefit of the parties as intended by the testator in his devise of the real estate. Under these circumstances the application to dispose of the estates in remainder and thus separate them from the life interest should have been denied and the proceeding have been dismissed.
This renders discussion of the other questions presented, as to the propriety of this proceeding in the circuit court during the administration of the estate by the county court, and as to the advisability of ordering a sale in case the proceedings were proper, immaterial and unnecessary, and we therefore refrain from considering them.
By the Gourt. — The order appealed from is reversed, and the proceeding is remanded to the circuit court with directions to , dismiss the application.