Nolan v. First National Bank

| Wis. | May 4, 1915

Vinje, J.

In Merton v. O’Brien, 117 Wis. 4-37, 94 N.W. 340" court="Wis." date_filed="1903-04-17" href="https://app.midpage.ai/document/merton-v-obrien-8187589?utm_source=webapp" opinion_id="8187589">94 N. W. 340, it was held that a devisee of land subject to the payment of a legacy charged as a lien thereon was not a trustee of an express trust, and that an action by the legatee to enforce the lien may be barred by the statute of limitations. The correctness of the decision is challenged by plaintiff and numerous foreign cases are cited to sustain the challenge. A careful re-examination of the whole subject has satisfied us of the correctness of the result reached in that case. The discussion of the subject in the opinion therein is so full and complete that no attempt will be made to add thereto or to restate the views there expressed.

It is claimed that the case at bar differs from Merton v. O’Brien because here the devisee is made the executor of the will. There are at least two reasons why that does not change the rule. First, because as executor no duty devolved upon the son to pay the legacy in question. He went into the possession of tbe land at once and tbe duty to pay devolved upon bim as devisee, not as executor. Second, upon tbe closing up of bis father’s estate be was fully discharged as executor more than six years before tbe commencement of tbe action. Since that time it is clear be owed no duty as executor to any one — bis only duty being that of a devisee. Having been only a devisee for more than six years before tbe commencement of tbe action, be could invoice tbe bar of tbe statute as such even if be could not have done so as executor.

Failure to pay tbe legacy for any one year gave tbe mother •a legal as well as an equitable remedy. She could sue tbe son at law to recover tbe amount due, or in equity for tbe same purpose, and have tbe amount recovered declared a lien upon tbe real estate. Having two remedies, tbe statute of limitations barred tbe equitable one at tbe same time tbe legal one was barred. Casper v. Kalt-Zimmers Mfg. Co. 159 Wis. 517" court="Wis." date_filed="1915-02-09" href="https://app.midpage.ai/document/casper-v-kalt-zimmers-manufacturing-co-8191633?utm_source=webapp" opinion_id="8191633">159 Wis. 517, 530, 150 N. W. 1101, and cases cited. Tbe trial court properly held that tbe six-years statute of limitations applied to plaintiff’s cause of action.

Tbe trial court found that tbe mother resided with her daughter a period of fourteen and two-thirds months during tbe years of 1907, 1908, 1909, 1910, 1911, and 1913, an average of a little over two months each year, tbe longest period being four and one-sixtb months in 1913 and tbe shortest time being one month in 1911. Both son and daughter lived in the same city and only about seven or eight blocks apart. The testimony shows that during all tbe time tbe mother kept her room, furniture, and most of her personal belongings at her son’s bouse; that tbe aggregate time each year as found by tbe court consisted of two or three or more separate visits; that when tbe mother felt like it she would go to her daughter and stay till she was ready to return to her son, who maintained a room for her and always cared for her when with bim. The will provides that be shall pay her $300 annually “any year or years wben sbe may for any reason reside elsewhere” than with him. The language itself implies that no account is to be taken of any absences less than a year. To construe it to require the son to be always ready to furnish her room and support and yet at the same time to require him to pay a proportionate sum for irregular short absences is to throw upon him an unreasonable burden and one not contemplated by the testator. He knew that if his son and daughter did not live far apart the mother would undoubtedly spend some time at her daughter’s house. The times so spent as shown by the evidence were merely prolonged visits. During the years mentioned the mother continued to reside with her son within the meaning of the will, and the trial court erred in charging such visits up to the son’s estate.

By the Court. — On plaintiff’s appeal the judgment is affirmed; on the defendant’s appeal the judgment is reversed, and cause is remanded with directions to dismiss the complaint.