Catlin v. Wheeler
| Decision Date | 27 May 1880 |
| Parties | CATLIN and others v. WHEELER and another, Executors, and others |
| Court | Wisconsin Supreme Court |
Argued May 13, 1880
APPEAL from the Circuit Court for Fond du Lac County.
This action was originally brought by Francis P., Theodore B. and William P. Catlin, Marguerite St. L. Loud, Caroline Loud and George Dart, against Charles F. Wheeler and Samuel Sumner executors of the last will and testament of Richard Catlin deceased. The case made by the complaint is as follows:
Richard Catlin, late of Fond du Lac county, died testate May 20 1874. Among other bequests in the will were the following: To the plaintiff Francis P. Catlin, $ 6,000 in bonds or notes and mortgages; to the plaintiff Theodore B. Catlin, $ 1,500 in bonds or mortgages; to the plaintiff William P. Catlin, $ 1,500 in coupon bonds; to the plaintiff Marguerite St. L. Loud, $ 1,000 in coupon bonds; to the plaintiff Caroline Loud, $ 1,000 in bond and mortgage of railroad company; to the plaintiff George Dart, $ 1,500 in bonds or notes secured by mortgages. The will was duly admitted to probate July 6 1874; and on the 18th of the same month the executors named therein accepted the trust and duly qualified and entered upon the performance of the will; and in the execution of said trust they took possession of the real and personal estate of their testator. The estate which thus came to their hands, was much more than enough to pay the debts and funeral expenses of the testator and the legacies and devises specified in the will, besides the costs and expenses of administration. Afterwards the executors made an inventory of the said real estate, and caused the same to be duly appraised, and filed the inventory and appraisal in the county court, as required by law. The personal estate consisted in part of railroad and municipal bonds and other securities, which were of various values, and a large portion of which were greatly depreciated from their par value. Being in doubt as to the true intent and meaning of certain legacies and devises contained in the will, the executors commenced an action in the circuit court for Fond da Lac county to obtain a judicial construction of the will in respect to said legacies and devises; and in their complaint they alleged a construction of the same, and prayed the judgment of the court in accordance therewith. In that action the executors were plaintiffs, and all the legatees and devisees were defendants. In said action Francis P. Catlin one of the present plaintiffs, filed an answer, in which he alleged, among other things, that the true intent and meaning of the bequests, in said will, of bonds and notes and mortgages, was that such securities were to be paid to the legatees at their face and not at their market value. The issues joined in said action by the plaintiffs therein and certain of the defendants, were tried by said court at the July term, 1875; and a decree was duly entered in the cause October 18, 1875, by which it was adjudged, amongst other things, that the bequest of $ 6,000 in bonds or notes and mortgages to Francis P. Catlin entitled him to that amount in bonds or mortgages, or bonds or notes secured by mortgages, of the average value of all the bonds and mortgages, or bonds and notes secured by mortgages, owned by the testator at the time of his death (except a certain $ 5,000 note and mortgage specifically bequeathed), to be taken at their face and not at their cash values, and to be selected by the executors; that the bequests to Theodore B. Catlin and George Dart must each receive the same construction and be paid in the same manner as that just mentioned; that the bequests to William P. Catlin and Marguerite St. L. Loud entitled them to the sums bequeathed to them severally, in bonds of the average value of all the bonds held and owned by the testator at the time of his death, to be taken at their face and to be selected by the executors; and that the bequest to Caroline Loud entitled her to the sum named therein in bonds of the average value, as near as might be, of the railroad bonds held and owned by the testator at the time of his death, to be selected by the executors. The decree directed the executors to make payment of said legacies in the manner above stated. Afterwards, within the time limited by law for taking an appeal, plaintiffs appealed from said decree to the supreme court of this state; and, upon the hearing of said appeal, that court held that the circuit court had erred in its construction of said bequests, and that it was the intent of the testator, by said bequests to these plaintiffs, to give them the sums named in the respective legacies, in value; that said legacies were general pecuniary legacies; and that if the securities named in said bequests should be insufficient to so pay the same, then said legatees should be entitled to receive the same out of the remaining estate of the testator. Thereupon the supreme court reversed the decree of the circuit court as to the legacies to these plaintiffs, and directed judgment to be entered pursuant to said opinion; and judgment was entered accordingly in the circuit court. After the entering of the erroneous decree in the circuit court, and before said appeal was taken, the executors, attempting to comply with the directions of said erroneous decree, paid over and delivered to these plaintiffs, respectively, certain bonds and moneys, the several amounts of which are specified. The executors took from the plaintiff Francis P. Catlin the following receipt: " Defendants also took from each of the plaintiffs a receipt similar in form to the above. At the time such receipts were taken and said payments made, Francis P. Catlin resided at the city of Ripon in Fond du Lac county, Theodore B. Catlin at Green Bay in this state, and all the other plaintiffs at various places named, in other states; and the business of taking said receipts and making said payments was transacted with each of the plaintiffs, except Francis P. Catlin, by mail, the receipts being signed and forwarded before the payments were made. In making these payments the bonds were estimated by the executors at certain specified values, and were paid to plaintiffs as and for said values. [The complaint specifies the values at which the several bonds were estimated, ranging from 22 to 70 cents on the dollar.] The plaintiffs, however, have none of them been able, with due diligence, to realize from said bonds a sum equal to the amount for which they were so paid, but only a much less sum. In making such payments, the executors intended to pay to the plaintiffs as and for their said legacies respectively, and, as they then supposed and believed, in full of the amounts they were entitled to receive, the following amounts in value, and no more: To Francis P. Catlin, $ 3,900; to Theodore B. Catlin, $ 975; to William P. Catlin, $ 750; to Marguerite St. L. Loud, $ 500; to Caroline Loud, $ 370; and to George Dart, $ 975; and said items of bonds and cash so paid to plaintiffs respectively were in fact less in value than the sums so intended to be paid; and plaintiffs received said amounts respectively as being confessedly due to them in any event, and without prejudice to their right to recover the balance of their said legacies under a true construction of the will. There was not, at the time said receipts were given and said payments made, nor at any other time, any agreement of settlement or compromise, or any other agreement between the plaintiffs or either of them and the defendants, in respect of their said legacies, whereby the plaintiffs or either of them agreed to receive any less value than the full amount to which they were severally entitled under the will; nor was there any matter or thing in dispute between defendants and plaintiffs or either of them to be settled or compromised; and in giving said receipts plaintiffs did not intend, nor did they agree with defendants or with any person, to abate any portion of their said legacies, or to bar themselves from receiving the full amount which the testator intended them to receive; but at the time of giving the receipts they supposed they were receiving all they were legally entitled to under the will. No one of the plaintiffs has received from the defendants or otherwise any further payment on account of said legacies; and there are now due from the executors to the plaintiffs respectively out of said estate on account of said legacies certain specified amounts, with interest on each from May 20, 1875. Plaintiffs caused to be served on the executors due notice of the entry of said judgment on appeal, and afterwards, and before the commencement of this action, demanded from the executors payments of said sums due them on account of said legacies; but the executors have wholly neglected and refused to pay any part of them. All the debts, legacies and devises of the testator have been paid by the executors out of the estate, except the said balances due these plaintiff's on account of their legacies respectively; and said executors have now remaining in their possession a large amount of assets belonging to the estate and properly applicable to the...
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