Rowley v. Rowley
143 Wis. 325
Wis.
1910
Check Treatment
TimliN, J.

This action was begun in tbe circuit court for Dane county. It appears from tbe amended complaint that A. A. Rowley of Dane county executed bis last will on April 14, 1902, and died in October of tbe same year. This will was admitted to probate on December 10, 1902. Tbe testator left surviving bim bis widow and six children, four of whom were under tbe age of twenty-one years, and since tbe death of tbe testator bis son Jesse 0. Rowley died leaving surviving bim bis widow and one daughter. All tbe living children of testator, all tbe children of a deceased' child, and testator’s widow are made parties defendant. Tbe will gave to testator’s widow during her lifetime bis. homestead in tbe village of Middleton in Dane county, but provided that after tbe death of tbe widow “the homestead above mentioned shall go to my little chilá. Newman Oarl and another child not yet born at tbe time of making this will, to-be owned by them jointly after tbe death of their mother.”' The child last mentioned is tbe plaintiff, Arlene, who was. born after tbe making of tbe will and before tbe death of tbe testator. Other real estate and all personal property were-given to tbe testator’s widow. On September 24, 1904, judgment was entered in tbe county court of Dane county assigning and setting over all tbe property to the devisees in tbe will mentioned according to tbe provisions of tbe will. Tbe homestead, which is alone in question here, consisting of lots 8, 9, 10, and 11 in block 7 in Middleton, Dane county, Wisconsin, was assigned “unto tbe said minor children Newman Carl Rowley and Arlene Rowley in equal shares, subject to tbe life use of tbe said homestead by said widow, Emma Rowley, in accordance with tbe provisions of said will.” Tbe widow has ever since been and now is in exclusive possession of said homestead. After judgment assigning the estate Newman Carl Rowley died, an infant, leaving surviving bim no widow or child. After tbe administration bad been completed it was found that there was practically no-*327property coming from said estate to the widow or minor children which produced any income available for their support. The homestead contains more land than is necessary for the residence of the widow and the child Arlene, and several of the lots included within the homestead axe nonproductive property, and the expenses of maintenance of the homestead and the taxes thereon far exceed the income from the said property. Owing to the financial condition of the widow she is unable to properly maintain herself and Arlene and meet the expense necessitated by keeping the homestead. She thereupon, as guardian for Arlene, made application to the county court for leave to sell the lands of the infant. Upon the hearing on this application a- question was raised as to whether the estate devised to Newman Carl Rowley and Arlene Rowley was a joint estate so that upon the. death of said Newman Carl the title would vest, in Arlene by right of survivorship. The county court thereupon ruled that it had no authority to construe said will in this regard, -and that before sale would be ordered the question above mooted must be determined by suit for construction. On this showing the plaintiff, Arlene, demands that judgment be entered construing the will of .said A. A. Rowley in respect to the question of survivorship.

The judgment of the county court assigning the homestead pursuant to the will did not transfer title to or in any way alter the disposition of the property made by the will. Smith v. Smith, 140 Wis. 599, 123 N. W. 146, and cases; Williams v. Williams, 135 Wis. 60, 115 N. W. 342, and cases. Upon application of the infant for a sale of the land the county court could decide whether the infant was the owner of the land sought to be sold for its benefit. In making this decision it must ascertain and decide upon the meaning of the will, at least to this extent. But that court did not have upon such application the adversary parties before it, because in the instant case the application is made after ad*328ministration closed and after tbe estate bas been assigned, and the doubt as to title arose by the death of one of the dev-isees after such assignment. Neither is the county court authorized to bring in such adversary parties upon such an application. It was therefore proper for the county court to require and for the plaintiff to begin an independent action in the circuit court where all adverse claimants could be made parties. Gianella v. Bigelow, 96 Wis. 185, 71 N. W. 111. A court of equity will not entertain a suit for construction of a will where there is no trust or other independent ground of equity jurisdiction. 3 Pomeroy, Eq. Jur. §§ 1155, 1158. But in the instant case the plaintiff claims to own the remainder subject to the life estate and present possession of her mother, who desires to join with her in the sale, and at the same time plaintiff is unable to avail herself of her right to sell this property to prevent waste and to use the proceeds for her support and maintenance because of the adverse claim made by other defendants to own an interest therein as heirs of Newman Carl. The defendants deny her claim and assert title in themselves. This furnishes the equitable feature or incident {quia timet) which gives that court jurisdiction to proceed to construe the will so as to enable the plaintiff to avail herself of her rights in the real property. She has no remedy at law against these claimants who are not in possession. Equity is, not subject to the reproach that there is no relief for the plaintiff in such case.

By the Court. — Order affirmed.