80 Wis. 486 | Wis. | 1891
This action is brought to obtain a construction of a clause in the will of Michael Kelley. The testator died in September, 1881. His will was admitted to probate, and the executors rendered their final account in April, 1883, which was allowed, and they were discharged from their trust. Michael Kelley, in the second clause of his will, gave and devised to his son John the eighty acres of land described, “ to have and to hold, possess and enjoy, so long as he shall occupy the same and pay the taxes thereon; but, in case my said son shall abandon the possession of said land, or neglect to pay the taxes thereon whenever the same shall be due and payable, his interest in said land shall terminate, and the title to the same shall be and vest in my sons Joseph and Frank and their heirs absolutely.” John Kelley took possession of the land devised to him in this ■clause of the will, and occupied the same, paying the taxes thereon up to the 17th day of July, 1887, when he died. The taxes have been paid since by Joseph Kelley, the administrator of John’s estate. That estate has likewise been settled, and the administrator has been discharged. The plaintiff is the heir and only child of John Kelley by a divorced wife, and was living in Oregon when all these proceedings were had. She was a minor, and knew nothing about them, and neither made an appearance nor was represented by a guardian in any of them. She states that Joseph and Frank Kelley claim the land devised to her father, and have entered into the possession of the same, because
Tbe appellants demurred to tbe complaint on the ground that tbe plaintiff bad an adequate remedy at law, and that therefore tbe complaint should be dismissed. Tbe circuit court overfilled tbe demurrer. It is insisted that tbe demurrer should have been sustained for the reason therein stated. It is not claimed, nor could it well be under tbe authorities, that a court of equity would not exert its jurisdiction in a proper case on tbe application of an heir to construe a will. Such a jurisdiction bas frequently been invoked in this and other courts, and bas been exercised without question. But it is likewise a well-settled rule that a court of equity will not entertain or exercise jurisdiction where tbe party bas a complete and adequate remedy at law, when tbe objection to such jurisdiction is seasonably taken. "Where equity can grant tbe relief to which tbe plaintiff is entitled, and tbe objection is not duly taken, it is deemed waived. But where tbe objection is taken by demurrer, as here, that the party bas a complete and adequate remedy at law, it is held that tbe objection must prevail. Shephard v. Genung, 5 Wis. 397; Stroebe v. Fehl, 22 Wis. 337; Deery v. McClintock, 31 Wis. 195; Gunderson v. Cook, 33 Wis. 551; Gray v. Tyler, 40 Wis. 579; Knight v. Ashland, 61 Wis. 247; McMillen v. Mason, 71 Wis. 405, are a few of tbe cases in this court" where tbe rule bas been enforced, and there can be no doubt but that tbe practice is in accord with tbe authorities on tbe subject... ■
Tbe question is, Has tbe plaintiff a full, adequate, and complete legal remedy by ejectment to recover tbe land
In whatever view we have been able to take of the case, we think the remedy at law is full, adequate, and sufficient, and that there is no occasion to invoke the jurisdiction of a court of equity to construe the will.
By the Gowrt.— The order of the circuit court is reversed, and the cause is remanded to that court with directions to sustain the demurrer to the complaint.