Towle v. Towle, 79 Wis. 596

Towle v. Towle

79 Wis. 596 | Wis. | 1891

Lyon, J.

Certain provisions in the will of James Towle are in direct conflict with the terms of the contract between him and his brother Samuel. If Samuel can enforce such contract, he is entitled under it, not to a specific forty acres of the farm of J ames, but to an undivided one-half of the whole eighty acres constituting the farm. The devise to *600the widow of the testator of a life-estate in the homestead forty acres is therefore hostile to the terms of the contract. So, also, is the bequest to her of the stock and farming tools which Samuel was to have under the contract. The enforcement of the contract would defeat such bequest, and, inasmuch as the defendant joined in the contract, its enforcement would probably defeat the life-estate of the widow in the homestead forty acres. It matters not that Samuel does not claim the stock and tools in this action, but only the land. His right to such personal property rests upon the same grounds as his right to the land, and, if he may enforce the contract as to the land, he may also enforce it as to such personal property. Neither is it material that he claims a specific forty acres of the farm without claiming an interest in the homestead forty acres. He can recover only upon the ground that the contract, and the whole of it, is enforceable in equity, and he cannot change the legal or equitable status of himself or the defendant by waiving some of his rights under it.

The will itself furnishes abundant intrinsic evidence that James intended the provisions therein in favor of Samuel should be a substitute for. the contract. If such was not his intention, he would not have devised and bequeathed to others the property to which Samuel was entitled under the contract. He doubtless supposed he was giving Samuel much more than the latter would have taken under the contract. The event shows that he was correct in this supposition, for Samuel had realized out of the income of the fund above mentioned more than double the value of the property which the contract gave him, besides the $2,200 discount which he obtained of the legatees when he purchased their interest in the fund. This $2,200 takes the place of and represents the future income from the fund. That is to say, in substance and effect, it is an advance payment of income estimated upon the probable duration of Samuel’s life.

*601There is another consideration bearing upon the equity of this case. It is reasonable to assume that, had James supposed Samuel would insist upon a performance of the contract, he would not have bequeathed to Samuel the income of such fund, but would have given the fund directly to the legatees, who, under the will, were to take it at the death of Samuel. On this theory, those legatees have suffered a loss of nearly $8,000 by reason of the fact that Samuel took all he was entitled to under the will before he sought to enforce the contract. Under the above circumstances, the case is governed by the well-established rule in equity that “ a person who has taken a beneficial interest under a will is thereby held to have confirmed and ratified every other part of the same, and he will not be permitted to set up any right or claim of his own, however legal and well founded it may otherwise have been, which would defeat or in any way prevent the full operation of the will. . . . The only question in such a case is, Did the testator intend (judging from the face of the will) that the property should go in such a manner? It is immaterial whether the testator thought he had the right, or, knowing the extent of' his rights, intended, by an arbitrary exercise of power, to exceed them; in either case, the party accepting the gifts of the will can only take the property on the terms, or the equity of the terms, upon which it was given.” Bigelow, Estop. (5th ed.), 674. True, there are certain qualifications' and limitations of the above rule, but none of these reach or affect this case, which is clearly within the rule. The circuit court so held.

By the Court.—Judgment affirmed.