Albright v. Albright

• Decision Date: 31 January 1888
• Citation: 36 N.W. 254,70 Wis. 528
• Parties: ALBRIGHT v. ALBRIGHT.
• Court: Wisconsin Supreme Court

70 Wis. 528

36 N.W. 254

ALBRIGHT

v.ALBRIGHT.

Supreme Court of Wisconsin.

January 31, 1888.

Appeal from circuit court, Brown county; SAMUEL D. HASTINGS, Jr., Judge.

This is an action of ejectment. Both parties claim title from Jacob Albright, deceased. The plaintiff claims one-sixth of two-thirds of the 40 acres of land described, under the will of the deceased. The defendant, Joanna Albright, claims the whole of said 40 acres of land, as constituting the homestead of the deceased, as his widow, and also as grantee, prior to the making of the will. Upon the trial, the court found, in effect, as matters of fact: (1) that September 1, 1880, said Jacob was the owner in fee of the 56 acres described, occupying the south 40 thereof, with the said Joanna, then his wife, living with him thereon, as a homestead; and that she, as his widow, continued to occupy the same; (2) that September 1, 1880, said Jacob executed a deed, duly witnessed and acknowledged in due form of law, of said homestead 40 to his said wife Joanna, and at the same time left said deed with John F. Thomas, of Sheboygan Falls, (12) with the intention that it should be delivered to the said Joanna after the death of said Jacob; (13 and 14) that said Joanna was present when said Jacob so delivered said deed to said Thomas, and that said Jacob then made no reservation of any control over it whatever; (15) that said deed was to be held by said Thomas for both Jacob and Joanna, during the life of the former, and after his death to be delivered to the said Joanna; (3, 16, 17,) that November 7, 1881, the said deed was obtained by the said Jacob from the said Thomas, and, in the presence of said Joanna, was destroyed by the said Jacob, she, though reluctantly, consenting thereto; that it was understood at the time of such destruction, by the said Jacob and the said Joanna, and such was his intention, that such destruction left matters the same as if no deed had ever been made; (4) that November 11, 1881, the said Jacob made and published his last will and testament, whereby, after certain specific bequests of personal property to said Joanna, he gave her one-third of all his property, real and personal, not specifying of what it consisted, and the remaining two-thirds to his six brothers and sisters, in equal shares; he having no children--the plaintiff being one of said brothers; (5) that Jacob died June 25, 1882, in, and being a resident of, Sheboygan county; (6) that October 31, 1882, the said will, upon the hearing thereof, was denied probate by the county court; (7) that December 2, 1882, the said brothers and sisters filed notice of appeal therefrom to the circuit court, with a bond to stay proceedings, which were thereupon certified to the circuit court accordingly; (8) that September 28, 1883, judgment was rendered in said circuit court admitting said will to probate, and October 16, 1883, the same was certified back to the county court pursuant to said judgment; (18) that October 23, 1883, the said Joanna filed with said county court notice of her election as such widow to take the provision made for her by law, instead of under the will; (9) that subsequently letters testamentary thereupon were issued to Hiram Ashcraft, as executor of said will, and said executor thereupon, January 5, 1884, filed an inventory of said estate, including therein said premises; (10) that September 18, 1884, the said Joanna filed her petition in said county court, and therein claimed said homestead 40 as her property at the time of the death of said Jacob, and asking that it be stricken from the inventory of said estate; (11) that, after due notice to all devisees and said executor, a hearing was had upon said last-mentioned petition in October, 1884, at which said devisees and executor were represented by attorneys, and, after such hearing, it was found and adjudged by said county court that said homestead 40 had been conveyed by said Jacob during his life-time to said Joanna, and was her property at the time of his death, and the same was accordingly ordered stricken from said inventory; and that no appeal had been taken from said order, and that the time for such appeal had expired; (19) that the defendants were in possession of said homestead 40 at the time of the commencement of this action, as alleged in the complaint; (20) that the plaintiff, under the will, became the owner and was the owner in fee of an undivided one-sixth of an undivided two-thirds of said 40 acres, as alleged in the complaint; (21) that no damages to the plaintiff were proven. And as conclusions of law the court found: (1) That Joanna was not entitled to any relief under her counter-claim; (2) that the plaintiff was entitled to recover the possession of the premises, as demanded in the complaint, together with the costs and disbursements of this action; (3) that he have judgment accordingly, and the same was, therefore, so ordered and entered. From that judgment in favor of the plaintiff the defendant brings this appeal.

Seaman & Williams, for appellant.

Geo. W. Foster, for respondent.

CASSODAY, J., ( after stating the facts as above.)

The widow successfully resisted the probate of the will in the county court. The brothers and sisters gave the requisite bond, and appealed from such adjudication to the circuit court, where the will was admitted to probate. Subsequently the widow elected not to take under the will, but under the statute; but this was not done until more than one year after the testator's death. The statute declares, in effect, that such widow shall be deemed to have elected to take the devise or other provision made for her in the will of her husband, “unless, within one year after the death of her husband, she file in the court having jurisdiction of the settlement of his estate, notice in writing that she elects to take the provision made for her by law, instead of such jointure, devise, or other provision.” Sections 2171, 2172, Rev. St. It is claimed that as “all further proceedings in pursuance of the act appealed from,” were stayed in the county court pending such appeal, (section 4036, Rev. St.,) the time during such stay should be deducted from the year; but the statute makes no such exception, and we are bound by the statute. True, the statute provides that when the commencement of an action shall be stayed by injunction, or statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action. Section 4236, Rev. St. But the case presented does not come within the provisions of this section. It is distinguishable from Zaegel v. Kuster, 51 Wis. 31, 7 N. W. Rep. 781, cited by counsel. Neither the contest of the will, nor the stay of proceedings pending the appeal in the circuit court, prevented, or in any way interfered with, the making of such election. The election must be made by the widow “within one year after the death of her husband.” Section 2172, Rev. St. No deduction from the time is provided for in case the validity of the will is contested; nor even where the will is lost, and its existence unknown to the widow until after the expiration of the year. The statute may be unwise, if not unjust, to the widow, but it is nevertheless imperative upon the courts.

The authorities certainly go to the extent of sustaining the proposition that where a deed is duly executed and delivered by the grantor to a depositary, in the presence of the grantee, and without any reservation of control, with the intention and understanding that such depositary is to retain the custody thereof until the grantor's death, and then deliver the same to the grantee, it is such grantor's deed in prœsenti from the time of such deposit, and such depositary thereby becomes the trustee of the grantee. Foster v. Mansfield, 3 Metc. 412; Mather v. Corliss, 103 Mass. 568;Regan v. Howe, 121 Mass. 424;Hathaway v. Payne, 34 N. Y. 92;Ball v. Foreman, 37 Ohio St. 139, 63 Amer. Dec. notes 243, 244. Some of these cases have been approved by this court. Prutsman v. Baker, 30 Wis. 651;Campbell v. Thomas, 42 Wis. 437. Here the delivery was made by the grantor to the depositary with such intention and understanding, and hence the case comes within the rule stated. It is conceded that the title would have passed immediately upon such deposit being made, had the grantee been a stranger, instead of the wife of the grantor. But it is claimed that a deed directly from a husband to his wife is inoperative in law, and conveys no legal estate. Such a deed,...