135 Wis. 584 | Wis. | 1908
Tlie appellant challenges the finding of the court that Rhoda J. Clarke paid the premiums on the insurance policy which was pledged to secure the payment of the purchase price of the house and lot in Wausau, on the ground that certain receipts and notes found among the papers of John C. Clarke indicate that some of the payments may hare been made by him, and further that the proof does not show that his wife then had a separate estate. The testimony does not show that Rhoda J". Clarke did not have a separate estate or individual earnings, nor does it show from what source the money was derived for the payment of the premiums, the receipts for which are in tire name of John C. Clarke. It is ■a fgir inference from the testimony that the payments were made by her or on her behalf. We do not regard this finding as material, as it conclusively appears that all premiums had been paid and that this paid-up .policy had become the sole and separate property of Rhoda J. Clarke at the time she purchased the house and lot and pledged it as ■collateral security for the purchase price. Moreover, prior to her death, ch. 376, Laws of 1891, had been enacted, which applied to all insurance on life theretofore effected, and expressly provided that such policy, when made payable to any manned woman, should be her sole and separate property and should inure to her separate use and benefit and that of her ■children. Regardless of the source from which the funds .were derived for the payment of the premiums, the husband had no valid claim upon tire policy or the proceeds after the death of his wife except such as he might derive from the terms of her will.
Although the consideration for the settlement of the foreclosure suit was furnished by the respondents, the appellant contends that the deed executed to John C. Clarke by the representatives of the Wylie estate vested the title in him under the provision of sec. 2077, Stats. (1898). That section has no application upon the facts as found by the court, as sec. 2079, Stats. (1898), declares that sec. 2077 shall not extend to cases where the alienee named in the conveyance shall have taken the same as an absolute conveyance in his own name, without the knowledge or consent of the person paying the consideration, or when such alienee, in violation of some trust, shall have pmchased the lands so conveyed with moneys belonging to another person.
The contention is made on behalf of the appellant that the court erred in holding that the will of Ehoda J. Olarke did not give full power to John 0. Clarke to make the conveyances to her granting the fee in the lands upon the considerations therein expressed. The intention of the testatrix is clearly expressed in the will and must prevail, as it is not inconsistent with the rules of law. Jones v. Jones, 66 Wis. 310, 28 N. W. 177; In re Moran’s Will, 118 Wis. 177, 96 N. W. 367. She bequeaths to her husband, John 0. Olarke, without words of inheritance, all her estate, both real and
Counsel for appellant, in support of the deeds executed toiler by the life tenant, urges that under sec. 2108, Stats. (1898), the life estate granted by the will was changed by the absolute power of disposition conferred upon him into a fee simple with respect to any purchaser, and cites in support of the contention Larsen v. Johnson, 78 Wis. 300, 47 N. W. 615, and Auer v. Brown, 121 Wis. 115, 98 N. W. 966. The word “purchaser” as found in this section is not used in its technical sense, but must be understood according to the common and approved usage of the language. Sec. 4971, Stats. (1898). As so understood, it means a purchaser for a valuable consideration. Farrington v. Wilson, 29 Wis. 383. The court in Larsen v. Johnson, 78 Wis. 300, 47 N. W. 615, construes a will containing a similar provision, in which the wife was named as devisee with power of sale, and it was held that she took a life estate with power to- dispose of the land when necessary for her support and comfort, and that her grantee, upon showing that the necessity existed, took the absolute fee. Under the rule as there stated it was incumbent upon the appellant to- show that the conveyances
Post v. Campbell, 110 Wis. 378, 85 N. W. 1032, fully supports the conclusion of the trial court that tbe conveyances of tbe land by John C. Clarke to1 the appellant are void against tbe claims of tbe respondents, based upon the findings of fact, as hereinbefore stated. There, Mrs. Post, tbe daughter of Thomas and Eebecea Eryer, brought suit against Campbell, tbe second husband, who survived her mother, to set aside a conveyance of land which her own father made to her mother, upon a verbal understanding that the latter should have the use of the same, or its proceeds, for her support during her life, the balance, if any remained, to go to the plaintiff. The mother, prior to her death, conveyed the land to Campbell upon a consideration similar to that asserted in 'this case, and the conveyance was set aside and title established in the daughter. It is said in tbe opinion:
“The right of respondent to take what was left was in no way inconsistent with the primary right vested in her mother, and therefore it was and is unaffected by the rule that, where there is an absolute grant coupled with a right inconsistent therewith, such right, to the extent of such inconsistency, must fail.”
These considerations fully meet the errors relied upon by the appellant, and lead to an affirmance of the judgment.
By the CouH. — Judgment affirmed.