Murray v. Kluck, 87 Wis. 566

Murray v. Kluck

87 Wis. 566 | Wis. | 1894

Winslow, J.

The evidence clearly does not sustain the finding of the circuit court to the effect that the $1,500 received by Anna Kluck as payment of the Johnson mortgage was her own property. It was undisputed that the *571money loaned to Johnson was Mathias Kluck’s money, and that the note and mortgage, when taken, belonged to him. No sale, transfer, or gift of the same was proven by any competent evidence. There was evidence received, against objection, to the effect that Anna had said that her husband gave the money to her. Her own testimony to that effect would not have been admissible; much less, hearsay evidence of her unsworn statements. It was urged that there ivas some evidence to show an estoppel as against the residuary legatees. There was evidence tending to show that some of the residuary legatees were present when the inventory and appraisal of the estate of Mathias were made, and that they claimed that the Johnson mortgage should be inventoried as part of the estate, but that Anna refused to put it into the inventory and did not do so. It is said that they should have made objection to the inventory immediately, and that, failing to do so, they are now estopped as against the sureties on Anna’s bond from claiming this money to be a part of the estate. We perceive no elements of estop-pel. The sureties had already signed the bond; they did not sign it on the faith of the inventory and appraisal, and no act or omission to act on their part is shown to have been induced by the. acts of the residuary legatees.

It is finally urged, as to this $1,500, that by the provisions of the will Anna had the right to dispose of it in any manner she chose during her lifetime, and that, having done so, her account cannot be charged with it, even though it was a part of the estate of Mathias. We cannot agree with this contention. All the provisions of the will must be construed together to ascertain the intention of the testator. Bearing this principle in mind, we think it clear from the whole will that Anna was not given an unlimited power of disposition of the personal property during her life. The personal estate amounted to $3,000 only. The testator, after giving a life estate therein to his wife, gave $1,500 in *572specific bequests out of what remained after her death, and added a residuary clause. Prom these bequests it very clearly appears that he contemplated a considerable residuum would be left after his wife’s life estate ceased. This seems entirely repugnant to the idea that his wife, by large gifts during her lifetime, could reduce the residuum to a mere nominal sum or wipe it out altogether. The release of Frank's mortgage was to all intents and purposes a pure gift. It was made during her last illness, on the same day when she made her will, when she was evidently expecting death. Nothing was received in consideration of it, and it was kept secret from all the other persons interested in the estate, and it does not appear to have been necessary for her support.

We construe the will as meaning that Anna could use the corpus of the personal estate so far as reasonably necessary for her support, but no further; she could not give it away as she attempted to do here without infringing on the rights of the remainder-men. The remainder was limited by the right of the life tenant to use the corpus for her support, but no further. Paine v. Barnes, 100 Mass. 470.

Upon this principle the executrix’s account should be settled. She should be charged with the personal property inventoried and with the $1,500 mortgage, she should be credited with the expenses and proper fees of her adminis-. tration and with such amounts as were reasonably expended out of the corpus of the estate in her support and maintenance during her life, and the balance struck. This is simply a proceeding to settle and state the account of AnnaKluck as executrix as it properly stood at the time of her death, in order that the balance, if anjq may come to the hands of the administrator with the will annexed, in order that he may finish the administration of the estate according to the provisions of the will. We have now no concern with *573the question of the unpaid legacy to Frank. These views necessitate a reversal of the judgment of the circuit court.

By the Court.— Judgment reversed, and cause remanded to the circuit court for further proceedings according to law.'