174 Wis. 538 | Wis. | 1921
The power of the court to modify the original decree in the manner attempted by the order and judgment appealed from is most effectually challenged. A judgment of final division of estate between husband and wife cannot be modified after the term at which it was rendered (Blake v. Blake, 75 Wis. 339, 43 N. W. 144; Gallager v. Gallager, 101 Wis. 202, 77 N. W. 145; Lally v. Lally, 152 Wis. 56, 138 N. W. 651; Zentzis v. Zentzis, 163 Wis. 342, 158 N. W. 284; Towns v. Towns, 171 Wis. 32, 176 N. W. 216), andan attempt to retransfer the real estate after such final division is without jurisdiction. Thompson v. Thompson, 73 Wis. 84, 40 N. W. 671. While a judgment for alimony may be modified at any time as long as it is in effect (Lally v. Lally, supra; Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 798; Zentzis v. Zentzis, supra), the right to alimony ceases absolutely upon the'death of the husband. Yates v. Yates, 165 Wis. 250, 161 N. W. 743; Lally v. Lally, supra; Maxwell v. Sawyer, 90 Wis. 352, 63 N. W. 283; Campbell v. Campbell, 37 Wis. 206. It also ceases upon the death of the wife.
While this necessitates a reversal of the order and judgment appealed from, we are urged to construe the original decree, thereby determining the status of the title to the real estate involved in so far as it is affected by the original decree entered herein. It is manifest that a controversy exists between the state and the plaintiff concerning the title to this property which must be determined by an authoritative construction of the original decree entered herein. Litigation looking toward such a construction is inevitable. This will be avoided by an expression of our views upon the subject at this time. Although a discussion of the matter is not necessary to a disposition of the present appeal, we feel constrained to give the matter our. consideration, to the end that further litigation may be avoided.
It is to be noticed that by the terms of the original decree the real estate therein mentioned was assigned to the plaintiff, Emilie Johanne Caroline Sophie Kuether, “in trust for herself and the said minor children of the plaintiff and defendant.” It is contended on the part of the State that the decree did not vest the plaintiff with the absolute title to the real estate and that nothing more than a trust was created. There is much discussion in the brief of the State as to the nature of the trust, and limitations are set upon the extent of the title which plaintiff can now claim upon various contingencies assumed.
We shall confine our inquiry to the question whether the court, by the language used, intended to create a trust at all.
While the words “in trust” or “for trust” used in a conveyance, will, or decree suggest a purpose to create a trust, yet they are not conclusive of such an intent. Davies v. Davies, 109 Wis. 129, 85 N. W. 201; Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258. In the latter case it was said:
“Of course, the presence or absence of words declaring an estate to be in trust is not conclusive, though they may be more or less significant of the purpose in the grantor’s mind. . . . The question is whether the testator’s intent involved the elements of a trust as known to the law.”
And in Will of Dever, 173 Wis. 208, 180 N. W. 839, it is said:
“We are also impressed with the thought that where a testator says he gives ‘in trust’ or ‘upon trust,’ but makes no attempt to prescribe the terms or purposes of the trust, a court may well pause and consider whether it was really the intention of the testator to create a trust in the legal sense.”
Under, the circumstances, the words “in trust” in the original decree give rise to an ambiguity, and in order to discover the judicial intent it is permissible to refer to the facts and circumstances disclosed by the record as well as the authority of the court in the premises. We should presume that the court intended to act within the scope of its authority and not to exceed it.
The divorce was granted on the ground of habitual drunkenness and cruel and inhuman treatment. The property of the defendant consisted of the lot here in 'question, with an adjoining lot, some household furniture, a number of cows and chickens, and certain promissory notes. The entire estate amounted to $3,500, according to the court’s finding. The statutes relating to divorce at the time the decree was entered authorized the court to make a final division of the
We therefore think that the court erred not only in assuming power to modify the original decree, but in assuming that by the entry of the order and judgment appealed from the original decree was in any respect modified. In other words, in our judgment the original decree vests in the plaintiff the absolute title to the property as fully as would be accomplished by the order, and judgment appealed from if within the jurisdiction of the court to make.
By the Court. — Order and judgment reversed, and cause remanded with directions fio dismiss plaintiff’s petition.