Baker v. Baker

• Decision Date: 24 March 1881
• Citation: 8 N.W. 289,51 Wis. 538
• Parties: BAKER AND ANOTHER v. BAKER, EXECUTOR, ETC.
• Court: Wisconsin Supreme Court

51 Wis. 538

8 N.W. 289

BAKER AND ANOTHER

v.BAKER, EXECUTOR, ETC.

Supreme Court of Wisconsin.

Filed March 24, 1881.

Appeal from circuit court, Racine county.

John F. Fish, for appellants.

Henry T. Fuller and W. P. Lynde, for respondent.

COLE, C. J.

1. In this case there are two appeals: one from the judgment of the October term, entered December 23, 1879; the other from a judgment of the subsequent term, entered May 11, 1880. The latter judgment purports to vacate the former, and, if it was effectual for that purpose, the appeal from the first must necessarily fail. It is claimed by the learned counsel for the appellants that the court lost all power over the judgment entered at the October term when that term closed, and could not vacate it, at a subsequent term, for any error of law or fact. This, undoubtedly, is the general rule--one which has often been affirmed by this court in the cases which have come before it. But the rule is not absolutely inflexible, and has its exceptions. The facts of this case take it out of the general rule. It is recited in the record that soon after the judgment of the October term was entered, and at that term, the counsel for the respondent moved, upon affidavits, to modify the findings and judgment. It appears that the hearing of the motion to modify was, by consent of counsel for both parties, adjourned to the third of May, 1880, which was of the next term. The motion was then taken up, argued, considered, and decided. But while this court adheres to the general rule that a judgment cannot be vacated after the term, unless a case is made under the statute, yet it is not inclined to go so far as to hold that if a motion to amend or vacate is made at the same term, and that motion is, by consent of counsel, continued to a subsequent term, that the court cannot then consider and decide it with like effect as if it had decided it at the first term. Nor do we see any sufficient reason for denying the power of the court to vacate or change its judgment at a subsequent term, under such circumstances. Without dwelling upon the statements contained in the affidavits upon which the motion in this case was founded, it may be observed that they set forth facts which rendered it quite proper for the court to review the first findings which were drawn up by appellant's counsel. It satisfactorily appears that the court, when it signed those findings, was under the impression that they had been submitted to the counsel on the other side, and approved. But this was a mistake for which no one was entirely responsible. We therefore think the circuit court was warranted in reviewing its action in that regard, having the power to do so. The two judgments are different in terms, but as, in our view, the first was completely set aside by the second, the latter alone will be considered.

2. The first question presented is in regard to the wool which was in the dwelling-house of the deceased at the time of his death, and which both the probate and circuit courts decided passed to James Baker under the will. That construction is vigorously assailed by the learned counsel for the appellant, but, in our judgment, it is the correct one. In the construction of the will but little aid can be derived from extrinsic sources. The intention of the testator, as gathered from the whole instrument, of course must prevail in the interpretation of particular clauses. This rule is elementary. In the third clause the testator devised and bequeathed to his son George W. Baker his home farm, “consisting of about 270 acres of land, and all the stock, grain, and farming utensils that may be on said farm at the time” of his decease. In the fourth clause he devised and bequeathed to his son James Baker the Yorkville farm, “and all the stock and farming utensils that may be on said farm at the time of” his death. By the residuary clause he gives and devises all his property, both real and personal, not before disposed of, to James Baker. These are the only clauses in the will which have a bearing upon the question we are considering. At the death of the testator there was a large quantity of personal property on each farm, among which was a flock of sheep, which at the time was on the farm devised to James Baker. It appeared that these sheep had been driven from one farm to the other for the purpose of pasturage, and feeding out the hay and fodder which had accumulated on each of said farms. The sheep had been principally kept on the home farm, and always sheared there. When the testator died there was on the home farm, in the dwelling-house thereon, a clip of wool from said flock of sheep for the year previous; also upon each farm large quantities of hay, grain, and other farm products.

Now it is insisted by the appellant's counsel that the word “ stock,” as used in the third clause, was intended to cover and should be construed to include this wool thus stored in the dwelling-house as against the operation of the residuary clause. He says this term “ stock,” in the primary sense, in agriculture, includes not only animals, but the products of the farm, properly purchased and taken upon the farm for its improvement and cultivation. Consequently, he argues, this wool which was on the farm was a product of the farm not yet marketed, and passed with the other personal property under the word “ stock.” We think, however, that this word, in the connection in which it is used, cannot have this enlarged meaning. Possibly it may not be restricted to the animals on the farm, but it could not include all the personal property thereon; if it did, the subsequent words, “ grain” and “ farming utensils,” would be unnecessary and surperfluous. In the devise to James Baker it will be noticed that the word “ grain” is omitted. Now, as was pointed out by the learned counsel for the respondents, it might with more reason be claimed in his case, in view of some of the authorities cited, that the words “ all the stock” included dead stock, so called, produce stored for use, and implements of husbandry. But we think in both clauses of the will, certainly in the third clause, the word “ stock” is used in a popular sense, as including the domestic...