Martin v. Martin, 126 Wis. 237

Martin v. Martin

126 Wis. 237 | Wis. | 1905

Siebeokeb, J.

The plaintiff was awarded the sum of $1,500 as a proper and reasonable amount out of defendant’s estate in the final division and distribution of the estate in a proceeding under sec. 2369, Stats. 1898. The trial court evidently acted upon the condition of defendant’s property as found by the court when the original judgment was rendered March 12, 1902. We think that the statute under which this proceeding is instituted contemplates that the court should ascertain the amount and value of the defendant’s property and his liabilities at the time of hearing the application for a division, and should then make a final division and distribution of it, with “due regard to the legal and equitable rights ■of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties, and all the circumstances of the case.” Proceeding from this standpoint, we are unable to affirm the conclusion of the court awarding the plaintiff the sum of $1,500 in such a final division and distribution.

*240It becomes material to ascertain what property defendant actually owned and the amount of his indebtedness at the time of the modification of the decree, namely, June, 1905. The witnesses who testified to the value of defendant’s homestead did not place it above $4,000. This appears to be a liberal estimate of its actual value. If we add to this the válue of his personal property as shown by the evidence, $415, we obtain a total for defendant’s estate of $4,475. The real estate is subject to a mortgage, claims of accumulated interest, and some unpaid taxes, amounting to $1,824.35. This leaves an equity of the value of not to exceed $2,650.65 under the most favorable estimate and conditions, and this amount in all probability could not be realized in case it should become necessary to convert it into money. Defendant’s liabilities, additional to the liens upon his real estate, amount to $890.55. Deducting the total of his liabilities from the value of his entire estate would leave but $1,760.10, and out of this plaintiff was awarded $1,500. As stated, the defendant would in all probability be unable to realize on this any sum approximating the amount awarded plaintiff as her share in the final division and distribution. It would practically amount to transferring the residue of his estate to her, and probably would leave a deficiency against him in her favor. This result cannot be justified in the light of the circumstances of the case and the rights of the parties. There is nothing special in the character or situation of the parties to take the case out of the rule applied by this court from an early day and repeatedly adhered to in the following cases. Varney v. Varney, 58 Wis. 19, 16 N. W. 36; McChesney v. McChesny, 91 Wis. 268, 64 N. W. 856; Roelke v. Roelke, 103 Wis. 204, 78 N. W. 923; Edleman v. Edleman, 125 Wis. 270, 104 N. W. 56. Under the rule of these cases we are of the opinion that plaintiff should be awarded the sum of $600 in a final division and distribution of defendant’s estate.

By the Gourt. — The order appealed from is reversed, and that part of the judgment awarding plaintiff $1,500 in the *241final division and distribution of defendant’s estate is modified so as to award ber the sum of $600; and as so modified the judgment is affirmed. Mo costs are allowed to either party. The defendant will be required to pay the fees of the clerk of this court.