143 Wis. 325 | Wis. | 1910
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-
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
By the Court. — Order affirmed.