93 Wis. 140 | Wis. | 1896
The following opinions were filed February 18, 1896:
But two questions were seriously argued by the appellant: (1) Whether Mrs. Melms lost the fee to the homestead by the filing of her petition of November 15, 1869; (2) whether the defendant can assert title as against the heirs under the sheriff’s deed on foreclosure.
In treating of this very will and election in the case of Melms v. Pfister, 59 Wis. 186, it was said by the present chief justice that by the filing of the election “the will immediately became inoperative as to the real estate, the title of which at once upon such election, if not upon the testator’s death, became vested in his heirs, subject to the mother’s right of dower and the paj'ment of the testator’s debts. ' From that time forth, at least, the real estate must be regarded the same as though no will had ever been executed.” Although the question as to the title to the homestead was not involved in that case, we are entirely satisfied that the same principles are applicable, and that from the time of the election the homestead also “ must be regarded as though no will had ever been executed.”
The claim is made that the will shows that it was the intent of the testator that his widow should take both under the will and at law, because the will gives her the entire property. It is true the will gives her the entire property, but, as to all the real estate except the homestead, she must take it (if she tabes it under the will) subject to the payment of unsecured debts of the deceased, which amounted to about
Again, it is said that this is not a case of election, because an election “ is the choosing between one property and another, not the accepting of tbe whole or a part only of what is willed.-'’ The argument is specious, but not to our minds sound. Here Avere certainly two alternatives between which she might elect. If she took under the will, she took a fee in the homestead, subject to the mortgages thereon; also a fee in the brewery property, subject to the mortgages and the payment of the debts of the deceased. The evidence plainly shows that the mortgages and unsecured debts would at that time consume the entire property. Under the laAV as then existing, and until the passage of ch. 133, Laws of 1S70, it seems that the unsecured creditors could have insisted on the mortgage creditors first exhausting their security on the homestead. Hanson v. Edgar, 34 Wis. 653. They would have swept the homestead, and the unsecured-creditors would have swept Avhat was left of the nonexempt property, and the result would have been that Mrs. Melms would have received nothing save such allowances or interests in the personal estate as were preserved to the widow in cases of testacy and intestacy alike. On the other hand, if she took under the law, she took a life estate in the homestead, subject to the mortgages (which, under the circumstances, was intrinsically fully as valuable as a fee), and she could take free of claims for unsecured debts her dower es
As the result of the election, the homestead descended to the plaintiffs, the children of the testator, subject to the life estate of the widow therein.
There are no other questions which are seriously urged or which require attention. A supplemental case was printed, but it was not necessary. No costs will be taxed for it.
By the Oourt. — Judgment affirmed.
With the decision of this court to the effect that Mrs. Melms’s election not to take under the will placed the title to the homestead in plaintiffs, subject to their mother’s life estate, and that defendant cannot use the sheriff’s deed, obtained on the certificate which it was agreed should be redeemed out of the purchase money, to cut off plaintiffs’ title I fully agree; but from the conclusion that by the deed from Mrs. Melms to Pabst and Schandein, and the use of the consideration that measured the full value of the property to pa.y off the incumbrances thereon so far as necessary to discharge or purchase the same, they obtained no other interest in such property than the mere ■life interest of their grantor, I respectfully dissent, and, without entering into any yery extended discussion of the matter, I will state my reasons therefor.
The law is well settled that a life tenant, or any person having a partial interest only in land, is not bound to pay off a charge or incumbrance on the title; that if such life tenant pays off such charge or incumbrance he is presumed to do so for his own benefit, and, though such charge or in-cumbrance be in form discharged, in fact it is kept alive for his benefit, protection, and reimbursement. In all such cases, in the absence of proof to the contrary, the presumption is that the intention of the life tenant was that the lien should be preserved, and a court of equity will give effect to such intention. In 2 Pomeroy, Eq. Jur. § 799, treating
To support the above-stated propositions, no citation of authority is necessary. They are elementary. ' And it follows that the conveyance from,Mrs. Melms to Pabst and Schandein, and the taking up or payment of the incum-brances out of the purchase money, gave to them the life estate of their grantor, and also vested in them, by actual or equitable assignment, all of such incumbrances; and their grantee, the defendant, is entitled' to enforce the same agáinst the plaintiffs’ interest in the property to the amount or proportion which they should contribute according to the settled rules of equity jurisprudence pertaining to the subject, unless there is something in the deed or contract pursuant to which it was made, not heretofore referred to, which renders inapplicable these principles.
It is said that Pabst and Schandein are chargeable with knowledge of the fact that Mrs. Melms had but a life estate, which is quite true, but that by no means prevented the passage to them, by force of the covenants in her deed, of all interest in the property acquired by her after the giving of the deed, or their becoming owners by equitable assign
That the intention of the parties to the contract was that Pabst and Schandein should become the owners of the full title to the property, and necessarily of the incumbrances which formed a part of the title, covered by the consideration named in the deed, appears from the contract so clear as to be beyond all reasonable doubt. It was agreed that the title in fee absolute, subject to the incumbrances, should be conveyed; that such incumbrances should be paid out of the $95,000 agreed upon as the purchase price for all, including the brewery property. It was provided that the amount necessary to redeem from the certificates might be placed with a depositary; and, referring to that portion of the contract on this subject, the following language is used: “The object being to secure to both parties the payment of the amount necessary to redeem said certificates.” The contract further provided as follows: “ The title to all such real estate shall be conveyed free from all incumbrances whatever, except as herein provided.” The exception refers to the incum-brances which were to be paid out of the consideration named in the deed.
From the foregoing it follows, in my judgment, that defendant, in addition to the life estate formerly owned by Mrs. Melms, is the owner of the mortgages and incumbrances mentioned; that defendant is entitled to have all such in-
The judgment should be reversed, and such proceedings be had that a decree may be entered as here indicated, and proper directions be made to secure that end.
A motion by the appellant for a rehearing was denied May 1, 1896.