77 Wis. 305 | Wis. | 1890
The following opinions were filed April 29, 1890:
There does not appear to be any dissatisfaction with the construction which the learned circuit court placed upon the 12th, 14th, 15th, and 19th paragraphs of the will of Mrs. Scott. The executor accepts that construction as correct, and as a full and complete interpretation of the meaning of those paragraphs, and has taken no appeal from those portions of the judgment. So we are relieved from all consideration of these paragraphs of the will, and they may be passed without further comment.
The controversy in this court is mainly over the meaning of the third paragraph, which reads as follows: “ Whereas my brother George A. Nemes is indebted to me in the sum of ten thousand dollars, money loaned, it' is my will that
The question now is, What should be understood by the language used in the last clause of this paragraph? In the answer of the defendants W. B. and George A. Weems, they insist that the intention of the testatrix was to provide for the payment of, certain sums of money loaned to said George A. by Mr, Thomas B. Scott in his life-time, and for which the said Scott. received notes made and signed by said George A. in the name of the defendant William B., his brother, as agent of said William, and that this was the indebtedness which the testatrix had in mind and desired should be paid out of her estate to the estate of her husband. The facts in regard to the origin and history of this indebtedness, as found by the circuit court, are as follows:
“Eor three or four years prior to December 11,1883, and on that date, the defendant George A. Neemes was insolvent, and was doing business for his brother, William, B. Neemes, as his agent, which facts were known to Thomas B. Scott and to the testatrix, Ann E. Scott. On the 11th day of December, 1883, Thomas B. Scott, the husband of the testatrix, ,Auu E. Scott, loaned to her brother, the said George A. Neemes, at her solicitation and request, the sum of $4,000, and received of him as security for such loan four certain promissory notes for $1,000 each, bearing date December 11, 1883, and made and signed by .said George A. Neemes. in the name of the defendant William B. Neemes by the said George A. Neemes as agent. There was no understanding or agreement between the parties to said loan,
That there is much evidence in this case which sustains these findings, it seems to me, cannot well be denied. Even if they are not supported by the weight of testimony, there is no such clear preponderance of proof against them as will warrant this court in setting them aside. The argument of plaintiff’s counsel, in his contention of the proper meaning of the third paragraph, proceeds largely on the assumption that the testatrix must have had in mind a legal indebtedness of George A. Weeves to the estate of Thomas B. Scott,— one which could be enforced by the estate in an action; and, unless such indebtedness in fact existed when the testatrix died, there is nothing to which the language applies. But this is not the correct view in which to con
But the question remains, Was it competent to show by extrinsic evidence that the testatrix always regarded and spoke of this indebtedness for the balance of the loan as the indebtedness of her brother George A. to her husband’s estate, so as to identify the subject matter to which she referred in her will when she directed that such individual indebtedness be paid for him out of her estate? We have already indicated our view that she did not necessarily nor
The other error assigned is the direction in the decision and judgment of the court below as to the payment of costs and disbursements. The court directed that the taxable costs and disbursements of all parties who had appeared in that court should be paid out of the estate of Ann E. Scott, deceased, and that the county court of Lincoln county should make such allowance to the respective parties out of the estate for counsel fees as, in the exercise of sound discretion, might be just. This order conforms to the direction of this court in Scott v. West, 63 Wis. 588; Webster v. Morris, 66 Wis. 400; Ford v. Ford, 10 Wis. 68— which decisions upon this point we have no desire to disturb.
It follows from these views that the part of the judgment of the circuit court appealed from is affirmed; taxable costs and disbursements of both parties in this court to be paid out of the estate of Ann E. Scott.
By the Court — Ordered accordingly.
This action was commenced in the circuit court by the appellant executor for the purpose of obtaining a construction of certain portions of the will of the testatrix, Ann E. Scott. William B. Neeves and George A. Neeves were made parties to the action as being interested in said will as legatees named -therein. In the complaint the executor asked for the construction of certain clauses and provisions in said will, but did not ask for any construction of the third clause in said will, which reads as
The contention on this appeal is as to the construction which should be given to the words in italics in this paragraph of the will. In other parts of the will the testatrix gave her brother William B. Neeves a legacy of $25,000, and to her brother George A. Neemes $25,000 in trust for his children.
The brothers of the deceased, William B. and George A., appeared in the action and claimed that the court should construe this clause of the will, as well as the parts asked to be construed by the plaintiff in the action; and they of-ferred evidence tending to show, as they claim, that the clause above quoted in italics was intended by the testatrix to refer to a particular claim or debt due to the estate of Thomas B. Scott, her deceased husband, upon a loan of $4,000 made by said Scott in his life-time, as is claimed, to George A. Neemes, and $2,000 of which remained unpaid at the time of the death of the testatrix, and that she intended that her estate should pay and cancel this debt, irrespective of the question whether her brother George was indebted to the estate of Thomas B. Scott for any part of such $2,000 at the time of her death, or not. The answer of the respondents upon this part of the will is as follows:
“ These defendants further allege that, by the individual indebtedness of the defendant George A. Neeves to the estate of Thomas B. Scott, deceased, which by the third*315 paragraph, of said will the said testatrix, Ann Eliza Scott, directed to be paid for him, said George A. Neeves, out of her estate, so that he might be wholly released from the same, so far as any such indebtedness should remain outstanding at her decease, the said testatrix referred to, and intended to provide for the payment of, certain sums- of money loaned to the said George A. Neeves by said Thomas B. Scott in his life-time, and for which said Thomas B. Scott received a note or notes made and signed by said George A. Neeves in the name of the defendant William B. Neeves, his brother, by him, said George A. Neeves, as agent; that, at the time of the decease of said Thomas B. Scott, George A. Neeves was not indebted to him except for the moneys represented by said notes, and that the said Ann Eliza Scott knew of the loaning of said moneys by said-Thomas B. Scott to said George A. Neeves, and supposed at the time she executed said will that the evidence of indebtedness for such loans or loan held by said Thomas B. Scott in form and fact showed the said George A. Neemes t'o be thé debtor of said Thomas B. Scott therefor, and it was her intention by said paragraph 3 of said will to cause such indebtedness represented by such note or notes to be paid and wholly satisfied out of her estate. These defendants William B. Neeves and George A. Neeves further allege that the said Walter A. /Scott, plaintiff, has. declared that it is his purpose to enforce the collection of said indebtedness by action upon said notes against said William B: Neeves, or otherwise, notwithstanding said provision in said paragraph 3 of said will of Ann E. Scott, deceased; and these defendants fear that he will commence and prosecute such action, unless he should be restrained from so doing by order of this court. "Wherefore these defendants pray that it may be adjudged and determined by the court that it was the intention of said Ann E. Scott, in and by said third paragraph of her will, to provide for the payment of said notes,*316 and of the indebtedness represented thereby, by the plaintiff, as executor of her said will, out of her estate, and that said third paragraph of her said will be, by the judgment of this court, construed as referring and applying to said indebtedness and said notes given therefor, and that the said plaintiff be-enjoined by the final judgment in -this action, and also during the pendency thereof, from selling, transferring, or in any manner disposing of said notes, or commencing or prosecuting any action thereon against said William B. Neeves or said George A. Neemes, or otherwise attempting to collect the same.”
On the trial in the circuit court the respondents were permitted to introduce evidence, under objection by plaintiff, which, it is claimed, tends to show that the testatrix, by this clause in her will, intended to cancel any debt due to the estate of her deceased husband -on account of said $4,000 loan, irrespective of the question as to who owed the debt; and it is insisted that it makes no difference as to the construction of this clause of the will whether George A. was at the time of her death, or at any other time, indebted to Thomas B. Scott or to his estate for said sum so loaned, or any part thereof. After hearing -the evidence in the case, the learned circuit judge .made findings upon this question numbered 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32. The thirty-second finding of fact reads as follows: “ The testatrix, Ann E. Scott, meant and intended by the individual indebtedness of her brother George A. Neeves to the estate of her husband, Thomas B. Scott, referred to in the third paragraph of her last wiR and testament, the indebtedness to the estate of her said husband for the balance unpaid of said loan of $4,000, to secure which said promissory notes had been so given by said George A. Neeves in the name of William B. Neeves. which indebtedness she understood to be, and was accustomed always to -describe and speak of as, the individual indebtedness of -said George A. Neemes; and
And the court found, as- a conclusion of law,- as follows.: “ It should be declared and adjudged by the judgment of the court herein that in and by the latter clause- of the third paragraph of her will,.construed and interpreted according to the true intent and meaning thereof, first the said testatrix, Ann E. Scott, directed the payment by her executor, out of her estate, to the estate of her deceased husband, Thomas B. Scott, of the said sum of $2,000, being the unpaid balance of principal of the $4,000 loaned by said Thomas B. Scott to Qeorge A. Neeves December 11, 1883, and secured by two notes of William B. Neeves of that date, made by George A. Neeves in his name and as his agent, for $1,000 each, due respectively eight and nine months after date, and bearing interest at the rate of eight per cent, per annum, together with interest upon said $2,000 at the rate of eight per cent, per annum from December 11, 1883, according to the terms of said notes.”
The plaintiff duly excepted to the findings of fact and conclusions of law.
It is not contended by the learned counsel for the appellant that the judgment would not be right if there was sufficient evidence in the case to show that George A. Neeves was indebted to the estate of Thomas B. Scott, directly or indirectly, for this $2,000,. at the time of the death of the testatrix; but it is insisted that, the whole evidence in the case shows conclusively that George A. Neemes was not at the time, of her death, or at any other time, indebted to Scott on account of said loan, and that Scott or his executor has never made any claim on George A. on account of such loan. I agree with the contention of the learned counsel for the appellant on this point¡ My reason for
I do not understand that even the learned counsel for the respondents place great.reliance on the fact of the actual indebtedness of George A. Neeves to the estate of Thomas B. Scott at the time of the death of the testatrix to sustain the judgment entered in the case. Their principal reliance is upon the claim made that the testatrix intended by her will to direct her estate to pay the amount due the Scott estate on said $4,000 loan at the time of her death without any regard as to who was the debtor. In my opinion, the evidence in this case fails entirely to show any .such intent on the part of the testatrix, admitting that it was competent under the law to show by parol evidence that such was her intention. It seems to me very plain that the testatrix, by this statement in her will, intended to benefit her brother George, and no one else. It is urged that she supposed that George was indebted to her deceased husband upon two notes of $1,000 each, and that it was these notes she intended to have paid out of her estate. This contention, it appears to me, is not probable, nor is it sustained by the evidence. There is evidence enough to show that she knew of the existence of these notes, and there is also an abundance of evidence that she knew that these notes were not signed by her brother George, but were signed by her brother William B. ■ Now, it is almost too clear for doubt that, if the testatrix had intended to provide .for the payment of these notes without regard to the fact whether her
It is urged that she supposed George was hable to pay this debt, and so it ought to be paid out of her estate. The fact that she supposed George liable for the debt can make no difference. Suppose George had given his notes for this debt, but, before his sister made her will, he had some arrangement between himself and some stranger by which, for a valid consideration, he had been released from the debt and such stranger had become liable to pay the same to the estate of her husband. Oan it be possible that such stranger could have insisted that the debt should be discharged out of her estate, under the language of this will? "Who will be benefited by the payment of this debt out of the estate of the testatrix? Certainly no one else than William B.; and, when the debt of WilUmn B. is discharged by the estate of his sister, he will be under no legal or moral obligation to pay the amount to George; and so a provision in her will clearly intended to benefit her brother George is by the judgment of the court made to
The' only reason that could' be urged with any plausibility that the testatrix intended’ that this $2,000' should be paid' irrespective of the question as to who was the debtor, must rest on the idea that she supposed that the money which was' loaned' went into the mill- business, and so benefited George, and whatever relieved the mill business would' benefit him’. But the evidence of George and ■ WüUmn B. both rejects this theory of the- case. George claims'- no interest in the mill business except to the extent of $25,' and William B. in no way recognizes his interest in'- that business beyond his ownership of one share of the stock, of the par' value’ of $25. "Why, then, should the mill-owners be relieved from the payment of the $2,000 which'they have received and used in their business, by a clause- in this will which is clearly intended to benefit George, and George only? If this $2,000 be paid out of the estate of the testatrix, so far as the'evidence in this case shows, no one will be benefited except the- owners of the stock of the mill company, some of whom are entire strangers to the testatrix and in no way the objects of her bounty. If, after this debt of the mill' company was paid out of' her estate, there would be a legal claim on the part of George to demand the money of the mill company, the case would have a different aspect, and it might be claimed that the intention of the testatrix would be accomplished substantially as she intended. If it could be shown from- the evidence in this case that the' payment of'the $2,000 out of the estate of the testatrix would inure to the benefit, in any way, of George A. JSTeeves, I should not feel that the intention' of the testatrix had been defeated, although in that' event it would’be taking'the $2,000' out of the estate of testatrix,
It is said that the testatrix might recognize George as the debtor to the estate of Scott for the $2,000, whether there was any legal liability on his part or not; but then, to carry out her intention to benefit George to the extent of such indebtedness, the court ought to declare the Scott estate a trustee of the $2,000 when collected of William B. for the benefit of George, and the estate directed to pay George the $2,000 when collected. Such a decree would carry out her intent to benefit George, and not the mill company, which can alone be benefited under the judgment entered in this case.
The evidence in the case shows that if, even at any time, George was indebted to the estate of Scott for this loan, such indebtedness was for a valuable consideration assumed by his brother William B. or by the mill company. The consideration for such assumption of the debt was the receipt by the mill company from George of the whole amount of the money loaned, and the giving of the note of one of the principal stock-owners for the payment of such loan, which note was accepted by Scott in full satisfaction of such debt by George. Suppose George had in fact given his own note to Scott for this $2,000, and this fact had been known to the testatrix, but before her death, and without her knowledge, George had paid the $2,000 note to Scott by giving Scott the note of his brother William, WilUam having received from George a sufficient consideration for his note for $2,000. Is it possible that William could have received the benefit of this provision in the will of the testatrix? And yet this is substantially what the evidence in the case shows. George owes nothing to Scott, because he has in fact received nothing from him. WilUam does owe Scott the $2,000, and has received a full consideration for
It seems to me so clear that the judgment of the circuit court is in conflict with the intention of the testatrix expressed in her will, that I am constrained to dissent from the decision of this court sustaining such judgment.
A motion for a rehearing was denied September 23,1890.