63 Wis. 612 | Wis. | 1885
The following opinion was filed June 1, 1885:
In ejectment, the party having the legal title, with'the right of immediate possession, must prevail. As sole heir at law of his father, the plaintiff claims such title and right of possession. Both are denied. Had the father died intestate, the plaintiff’s claim would have been manifest. Then he would have shown a right to the possession “ as heir.” Sec. 3019, E. S. But the father did not die intestate. It is admitted that he left a will. By the will he gave, devised, and bequeathed all his estate, both real and personal, to his step-daughter, one of the defendants. The will was proved in the county court, and was by that court admitted to probate, established as a valid will, and ordered to be recorded. From that judgment of the probate court the plaintiff appealed to the circuit, court. Upon the trial of that appeal the will was re-proved in solemn form, and thereupon it was ordered, adjudged, and decreed by the circuit court that the judgment of the county court admitting the will to probate be, and the same was thereby, affirmed, and the instrument was thereby allowed, and the probate thereof granted, as the last will and testament ©f said deceased.
The serious question here presented is as to the effect of that judgment upon this action. At -common law the probate of a will was conclusive as to the personal property, but was no evidence as to the execution or validity of the will, so far as it affected real property. 1 Daniell's Ch. Pr. 877; Abb. Tr. Ev. 110. At common law, and as to real estate, the will itself, on being duly proved in an action of ejectment or other suit affecting the title to realty, became a muniment of title. Colton v. Ross, 2 Paige, 396; Bowen v. Idley, 6 Paige, 46; Brady v. McCosker, 1 N.
Another section of the statutes declares “ that every devise of land in any will shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall appear by the will that the devisor intended to convey a less estate.”' Sec. 2218. Under this section it has, in effect, been held that where there is an absolute, unconditional devise, the devisee takes at once on the death of the testator. In re Pierce, 56 Wis. 560; Schriver v. Meyer, 57 Am. Dec. 634; Abbott v. Pratt, 16 Vt. 626. This may include lands acquired after making the will (sec. 2279), and the homestead (sec. 2280). Ferguson v. Mason, 60 Wis. 387. In the case before us there is no intervening estate. The devise to the step-daughter is direct, absolute, and unconditional. She therefore, as sole devisee, took the legal title to the real estate in question at once on the death of the testator. Thus her right and title to the land in ques
Was the plaintiff’s right to maintain this action against the devisee, notwithstanding the probate of the will, saved by statute ? There is no claim that the will was ever revoked in any of the ways designated in sec. 2290, R. S. ( Will of Ladd, 60 Wis. 190); nor that there was ever any “ revocation implied by law from subsequent changes in the •condition or circumstances of the testator,” as therein excepted. Were it claimed that the will in question had been revoked in any of the ways mentioned in that section, or by implication of law, the question would arise whether the party alleging such revocation was not bound to avail himself of the objection in the probate proceedings, or be forever precluded from attacking the will collaterally on any such ground? According to Mr. Freeman he would. § 608. It has been held that the probate of a will could not be collaterally avoided on the ground that the will was a forgery. Ibid.; Moore v. Tanner’s Adm’r, 5 T. B. Mon. 45; Rex v. Vincent, 1 Strange, 481; Allen v. Dundas, 3 Durnf. & E. 125; Priestman v. Thomas, 9 L. R. Prob. Div. 210. So it has been held that it could not be collaterally avoided on the ground that the will so admitted to probate had been procured by fraud or undue influence (Archer v. Meadows, 33 Wis. 167); nor that it had been revoked by the subsequent
Where, after making his will, the testator has a child born to him for -whom no provision is made therein, such child has the same share in the testator’s estate as if he had died intestate, and the share of such child shall be assigned to him as provided by law in case of intestate estates, unless it be apparent from the will that it was the intention of the testator that no provision should be made for such child. Sec. 2286, R. S.; Bresee v. Stiles, 22 Wis. 120; Bowen v. Hoxie, 137 Mass. 527; Chicago, B. & Q. R. Co. v. Wasserman, 22 Fed. Rep. 872; Willard’s Estate, 68 Pa. St. 327; Talbird v. Verdier, 1 Desaus. 592; Holloman v. Copeland, 10 Ga. 79; Potter v. Brown, 11 R. I. 232; Waterman v. Hawkins, 63 Me. 156; Evans v. Anderson, 15 Ohio St. 324.
The claim here is that the testator omitted to provide in his will for the plaintiff, and that it “ appears,” from the oral evidence taken on the trial in this action, “that such omission was not intentional, but was made by mistake or accident,” and hence that the plaintiff is entitled to “ have the same share in the estate of the testator as if he had died intestate, to be assigned as provided in the preceding [sec. 2286] section.” Sec. 2287; Wilson v. Fosket, 6 Met. 400; S. C. 39 Am. Dec. 736; Converse v. Wales, 4 Allen, 512; Doane v. Lake, 32 Me. 268; S. C. 52 Am. Dec. 654; Gifford v. Dyer, 2 R. I. 99; S. C. 57 Am. Dec. 708; Ramsdill v. Wentworth, 101 Mass. 125; S. C. 106 Mass. 320;
. The question recurs, At what stage of the proceedings, and in what form, must such unintentional omission be made to appear ? Can the heir who has reached his majority, after having appeared in the ■ probate proceedings and allowed judgment admitting the will to probate without objection, raise the question for the first time in an action of ejectment against the devisee? It will be observed that, under each of these sections, such omitted heir is to “have the same share in the estate of the testator as if he had died intestate, to be assigned ” “ to him, as provided by law in case of intestate estates.” Secs. 2286, 2287, R. S. “ "When any share of the estate of a testator shall be assigned,” as provided in either of those sections, “the same shall first be taken from the estate not disposed of by the will, if any; if that shall not be sufficient, as much as shall be necessary shall be taken from all the devisees or legatees, in proportion to the value of the estate they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in which case such specific devise, legacy, or provision may be exempted from such apportionment, and a different apportionment may be adopted, in the discretion of the county cowrtP Sec. 2288, R. S. The share of the estate which is to be assigned to the omitted child of the testator as if he had died intestate, as provided
The several sections of the statutes cited clearly contemplate that such after-born child, or child omitted by the testator from his will through “ mistake or accident,” shall have the remedies provided for in the county court. The remedies provided are in the nature of settlements and partitions be
In the case of Ladd's Will, already mentioned, a class of
That the plaintiff has not mistaken his remedy and may maintain ejectment, counsel cite and rely upon Evans v. Anderson, 15 Ohio St. 324. That was on demurrer to the original petition to recover possession of lands. Whether the petition sought equitable relief, or was solely in the nature of ejectment, does not appear from the report; hut we assume the latter. In that case the petitioner was horn about five months after the death of the testator, and about two months after the will had been admitted to probate. The court expressly distinguished the case from'one “ where the probate of the will is to he impeached, or its validity is to' be attacked, on account of a defective execution, or on grounds that existed and were cognizable by the court when it was proved. In either ease it must he done ly direct contest. But it must he observed that there is a wide distinction between such a case and this. This will was properly admitted to record. . . . The devisee held the title under a valid will, subject to the condition imposed by the statute that the will should become .void on the birth of a subsequent child. The will was executed subject to the contingency of being avoided by the birth of a child. It was admitted to probate subject to the same contingency. The will was good until the birth of the child. If it had not been bom alive, it would still be good. By his birth the will became void.” It is very plain that in that case, as held by this court in Bresee v. Stiles, 22 Wis. 120, the probate was void as against the unborn child for want of jurisdiction. In fact, the opinion of the court in the Ohio case is an authority against the maintenance of this action. Here the validity of. the will and its probate is collaterally attacked and impeached “ on grounds that existed and were cognizable by the court when it was proved;” in which case it is there said, “it must be done by direct contest.”
The sections of the statutes of that state, there under consideration, were quite similar to our secs. 2286-2288; but their statutes did not seem to have the other provisions of our statutes cited; and did contain a provision that if no person, within one year, after the probate of a will, contested the same, or the validity thereof, such probate should be conclusive; saving to infants, married women, and persons of unsound mind, a like period of one year after their respective disabilities should be removed. Wood, Dig. Cal. Stats. pp. 394, 395, § 36 (1858); Code Civil Prop. Cal. p. 352, § 1333 (1872); 2 Hittell (1876), (§ 1333), 11,333. In that case the action was commenced and tried during the plaintiff’s infancy; hence, as to her, the probate was not conclusive under the statute. The difference.in the statutes of that state and ours seems to be sufEcieht to distinguish the two cases; but were it otherwise, we should not be inclined to follow it in a case like this.
The difficulty in maintaining an action of ejectment against the devisee to try the naked legal title in a case like this, and under our statutes, seems to be manifest. The fact upon which it is sought to invalidate the will, and the probate of it, existed, if at all, at the time of making the will, and was known to the plaintiff at the timeAf the probate of the will. The evidence of its existence, if any; was entirely dehors the will and the record of- its probate, and rested wholly in
As we have seen, other courts have gone still further, and held tbe probate conclusive against any collateral attack as to tbe forgery of tbe will or tbe existence of a later will, or any of tbe enumerated grounds of revocation. To allow such omitted child to take under tbe statutes of descent, when tbe testator has, by will in form, disposed of all bis estate, both real and personal, and such will has been admitted to probate, so that tbe devisee’s right to tbe land has become as complete at law as a conveyance to him from the testator would have been, there must necessarily be a
By the Gourt. — • Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded for a new trial.
Upon a motion for a rehearing counsel for tbe respondent urged, inter alia, that a child omitted from bis father’s will by mistake or accident does not take as devisee under tbe statute (sec. 2281, E. S.), but by descent as heir, and-hence may maintain ejectment. Smith v. Robertson, 24 Hun, 210; S. C. 89 N. Y. 555; Rockwell v. Geery, 4 Hun, 611; S. C. 6 Sup. Ct. (Thomp. & C.), 687; Sanford v. Sanford, 61 Barb. 295; Mitchell v. Blaine, 5 Paige, 588; Plummer v. Murray, 51 Barb. 201. Admitting a will to probate establishes merely tbe sufficiency of its execution. Fallon v. Chidester, 16 Iowa, 588; Ware v. Wisner, 1 McCrary, C. C. 66; Tyler on Ejectment, 506.
Tbe motion was denied September 22, 1885.