Baker v. Baker

• Decision Date: 04 April 1883
• Citation: 15 N.W. 425,57 Wis. 382
• Parties: BAKER AND ANOTHER v. BAKER, EX'R, ETC.
• Court: Wisconsin Supreme Court

57 Wis. 382

15 N.W. 425

BAKER AND ANOTHER

v.BAKER, EX'R, ETC.

Supreme Court of Wisconsin.

Filed April 4, 1883.

Appeal from circuit court, Racine county.Fish & Dodge, for respondents, George W. Baker et al.

J. V. Quarles, for appellant, James Baker, executor, etc.

TAYLOR, J.

The judgment of the circuit court in this action was reversed by this court upon an appeal taken therefrom by the present respondents, and upon the remittitur of this court to the circuit court, and on motion of the former appellants, the said circuit court again entered judgment in said action, and from this judgment the executor appeals to this court. The opinion on the first appeal very clearly states the questions passed upon by this court, and the remittitur directs the circuit court to enter judgment in accordance with such opinion. See Baker v. Baker, 51 Wis. 538-549; [S. C. 8 N. W. REP. 289.] To clearly understand what was determined by this court on the former appeal, it will be necessary to give a brief history of the litigation in this case: William Baker, now deceased, died testate. His will was duly probated. Mary Ann Baker, the present respondent, is the widow of said deceased. The appellant, James Baker, was duly appointed and qualified as executor of the will of said deceased. After the probate of the will and the qualification of the executor, upon the application of the widow the county court, on the thirty-first of August, 1876, made an order allowing the said widow $50 per month for her support and maintenance for one year from March 23, 1876. This allowance was paid by the executor. On the seventeenth day of November, 1877, said county court made another order, on the application of the widow, granting her an additional allowance of $50 per month, or $600 per year, from March 23, 1877, to the time of the final settlement of the estate by the executor.

Previous to the first day of April, 1878, the executor, upon proper notice to all parties interested, made application to the county court for a final settlement of his accounts as executor of the estate of said deceased. A hearing was had upon such application in said county court, and on the first day of April, 1878, that court made a final order adjudging that the final account as rendered by the said executor was in all respects correct, and ratified and affirmed the same, and assigned to the widow certain household furniture, described in the inventory of said estate, also the use of certain rooms in the house and homestead of the deceased during her widowhood, and also assigned to her, during her natural life, all the use, income, and profit of one-third of all the real estate of which the said deceased died seized. The court also assigned to the other devisees and legatees mentioned in said will the real and personal estate devised and bequeathed to them respectively by said will, and in each case the real estate was assigned “subject to the life estate and interest of said widow therein, as named in said last will and testament of said deceased.” It then assigned all the residue and remainder of said estate, both real and personal, to the said James Baker, as the residuary devisee and legatee named in said will. The final clause of the order made by the county court reads as follows: “It satisfactorily appearing to this court that the said James Baker, as executor of the last will and testament of the said William Baker, deceased, has fully executed the will, and administered and settled the estate of said William Baker, deceased, it is by the court now here adjudged and decreed that the said James Baker, as executor as aforesaid, be and hereby is released and discharged from further duty as such executor, and from all responsibility and liability growing out of the execution of said last will and testament of said William Baker, deceased, and the settlement of his estate.”

From this order of the county court the widow and George W. Baker appealed to the circuit court of Racine county. The notice of appeal reads as follows:

“ In re ESTATE OF WILLIAM BAKER.

To Elbert O. Hand, County Judge, and James Baker, Executor, etc.: Please take notice that Mary Ann Baker and George W. Baker, legatees under the above-mentioned will, do appeal to the circuit court for Racine county, in the state of Wisconsin, from the final order or decree of this court assigning the property of said estate under said will, and discharging the executor from his trust, bearing date April 1, 1878, for the following reasons, to-wit:

(1) The county court erred in construing the said will by holding that a certain quantity of wool, being about 1,131 pounds, which was at ‘the home farm,’ so called in said will, did not pass to George W. Baker under the said will, and by holding and assigning the same to James Baker under the residuary bequest in said will.

(2) The court erred in its order made in the course of the administration of said estate, bearing date March 18, 1878, wherein the court modified orders previously made, allowing the sum of $50 per month to the said Mary Ann Baker during the settlement of said estate for her support, and allowing her the sum of 800 in lieu thereof.

(3) The court erred by said order wherein it ratified and confirmed the account of said executor, and discharged him from all further liability as such executor, when it appeared by said account, and from testimony taken on said accounting, that said James Baker, executor, had failed to execute said will, and had failed to comply with the orders of this court by neglecting to pay over to said Mary Ann Baker any of the rents, income, and profits of one-third of all the real estate of which said William Baker died seized, bequeathed to her by said will, and by neglecting to pay to said Mary Ann Baker the sum of $50 per month for her support during the settlement of said estate, as he was required to do by the several orders of this court, and by failing to pay the sum of 800 for her support, as he was required to do by the order of this court. bearing date March 18, A. D. 1878.”

Upon the trial of this appeal in the circuit court of Racine county, that court made the following findings of fact and conclusions of law: The first finding of fact relates to the ownership of a certain quantity of wool which was claimed by George W. Baker, but which was held by the circuit court, and this court on the former appeal, to belong to the general estate. The second and third findings are as follows: “(2) That on the thirty-first day of August, 1876, the county court, by its order, made an allowance of $600 to the widow of said William Baker, deceased, for her support for one year from March 23, 1876, and that on the thirteenth day of November, 1877, the widow made application for a further allowance, but that no further order was made in said matter until the eighteenth day of March, 1878, on which day the county judge made an order providing that said widow should receive the sum of $800 during the settlement of said estate in lieu of all other allowances; (3) that the executor, James Baker, from the time of the testator's death, and during each of the farming seasons of 1876 to 1879, inclusive, has occupied 320 acres of said lands of the testator in the towns of Yorkville, and that the rental value thereof during said seasons was two dollars per acre for each season.”

The circuit judge filed the following conclusions of law: The first relates to the ownership of the wool, and is not material in this case; “ (2) that the appellant Mary Ann Baker is entitled to an allowance in full during the settlement of said estate of $800; (3) that James Baker is liable to pay Mary Ann Baker, as and for her third part of the rent aforesaid of the said Yorkville farm, the sum of $853.33, and that said executor upon such payment, and not until then, is entitled to a discharge as such executor; (4) that the costs incurred herein should be paid by the parties respectively incurring the same.”

Upon these findings judgment was entered in the circuit court, dated May 11, 1880. The judgment first declares that the wool belongs to the estate of the deceased, and to James Baker as residuary legatee, and not to George W. Baker; second, “that Mary Ann Baker have and recover from James Baker the sum of $853.33 as her share of the rent of the Yorkville farm, occupied by said James Baker during the four seasons subsequent to said testator's death;” third, “that the costs of this suit be paid by the parties respectively incurring the same;” and, fourth, “that upon a compliance of said executor, James Baker, with the terms of this judgment, by the payment of the above-mentioned sum to said Mary Ann Baker, said executor be discharged from all liability as such executor, and that his sureties be released from further liability in said matter.” To these findings of fact and conclusions of law the present respondents excepted, and appealed from the judgment to this court. Upon the determination of that appeal by this court, the finding of the circuit court as to the ownership of the wool, and the value of the use of the one-third interest of the widow in the Yorkville farm, and the liability of the executor, as such, to account to the widow for such value before he could be discharged or make a final settlement of the estate as executor, was in all respects affirmed, except that this court held that the executor should pay interest on the rent due to the widow for each separate year's rent from the end of the year to the time of payment; and that part of the findings of fact of the circuit court which found that no order for a further allowance for the support of the widow during the settlement of the estate was made by the county court on the thirteenth day of November, 1877, was reversed, and the conclusion of law that Mary Ann Baker was entitled to an allowance in full, the sum of $800, and no more, was also reversed.

Upon the question as to...