Cawker v. Dreutzer

Citation221 N.W. 401,197 Wis. 98
PartiesCAWKER v. DREUTZER ET AL.
Decision Date09 October 1928
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Milwaukee County; Oscar M. Fritz, Circuit Judge.

Action by Leonore H. Cawker against Carl Gustaf Dreutzer, Hortense Cawker Merrill, and others. From the judgment, defendant last named appeals, and plaintiff seeks modification of said judgment, filing notice of review. Affirmed.--[By Editorial Staff.]

This is an appeal from a judgment construing a will, the administration of the estate being then pending in the county court of said county.

Action begun July 7, 1924. Judgment entered October 25, 1927.

The findings of fact made by the circuit court, to which no exceptions were taken, are as follows:

(1) That E. Harrison Cawker, a resident of Milwaukee county, died on the 20th day of December, 1893, leaving a last will and testament, which was duly admitted to probate in the county court of Milwaukee county on the 7th day of February, 1894.

(2) That a copy of said will is annexed to the complaint in this action and is made part hereof.

(3) That Sarah M. Cawker, Carl Gustaf Dreutzer, and Lewis M. Ogden were named and appointed in said will as executors without bond, and letters testamentary thereon were issued to them by the county court of Milwaukee county on the 7th day of February, 1894.

(4) That said E. Harrison Cawker, deceased, left him surviving his widow, Sarah M. Cawker, and two children, namely, the plaintiff, Leonore H. Cawker, and the defendant, Pauline A. Cawker Klein (formerly Thormaehlen), both of said children of full age and competent.

(5) That the plaintiff, Leonore H. Cawker, is unmarried and has no issue, and that the defendant Pauline A. Cawker Klein is now a widow and has one child, the defendant Hortense Cawker Merrill.

(6) That said E. Harrison Cawker, deceased, at the time of his death, owned personal estate which, according to the inventory filed in the county court of Milwaukee county on June 20, 1894, was appraised at $305,588.13, said personal estate consisting of stocks, notes, mortgages, land contracts, and cash money, and which sum included the household goods, horses, and vehicles, etc., appraised at $4,150; and that said deceased at the time of his death owned real estate which, according to the said inventory filed as aforesaid, was appraised at $360,800. The total value of the estate, according to the inventory and appraisal, was $666,388.13.

(7) That Lewis M. Ogden, one of the original executors, died on January 23, 1915, and the plaintiff, Leonore H. Cawker, was, on February 18, 1915, appointed his successor, and letters testamentary were on that day issued to her without bond; that Sarah M. Cawker, widow of said E. Harrison Cawker, and one of the original executors named in said will, died on August 10, 1918, and that on August 23, 1918, the defendant Pauline A. Cawker Klein was appointed her successor, and letters testamentary were issued to her on that day without bond; that the plaintiff, Leonore H. Cawker, the defendant and one of the original executors, Carl Gustav Dreutzer, and Pauline A. Cawker Klein are now the duly appointed, qualified, and acting executors under the last will and testament of E. Harrison Cawker, deceased, and that there has been no settlement of the ordinary administration of the estate, and that the acting executors have not been appointed trustees, and that no letters of trust have been issued to them, and no final decree has been made and entered assigning the estate of the deceased to the executors as trustees.

(8) That, since the admission of the will of deceased to probate, the duly appointed, qualified and acting executors of the estate have managed and administered the same and have made sales of certain portions of the real estate and made investments and regularly filed their annual accounts, and that the last account filed by the executors for the year ending December 31, 1926, shows a balance in the hands of said executors, including real and personal estate, of a trust estate of $580,072.82.

(9) That the executors under the will of the deceased have annually accounted to the county court for their administration of the estate, and that plaintiff herein, since attaining the age of 21 years, has personally joined in and consented to the allowance of each of the executors' accounts, and since her appointment as executrix has joined in the making of such annual accounts and their presentation to the county court, with a prayer for their allowance, and that prior to the commencement of this action plaintiff made no demand upon the executors that any part of testator's residuary estate be paid over, assigned, or conveyed to her.

(10) That according to the last account filed by said executors the gross income of said estate, real and personal, was $65,942.49, and, after deducting all expenses and disbursements, the net income remaining amounted to $34,619.47.

(11) That the executors of said will, in administering said estate, have complied with all of the terms and provisions of paragraphs numbered first, second, third, and fourth, and all of the property, consisting of bequests and devises, in those paragraphs mentioned, have been paid or delivered to the persons entitled thereto.

(12) That in the administration of the residue of said estate, named in paragraph numbered fifth of said will by said executors and trustees, they have administered it as one entirefund, and have not actually divided the corpus of the estate into two parts.

(13) That during the life of said Sarah M. Cawker said executors paid to her the sum of $5,000 each and every year out of the income on said residue, and during all of the life of said Sarah M. Cawker said executors and trustees paid to the plaintiff herein each year one-half of all of the income on said residue in excess of $5,000 and paid the other one-half of such income during the same time to the impleaded defendant Pauline A. Cawker Klein.

(14) That since the death of said Sarah M. Cawker said executors and trustees have paid to the plaintiff herein one-half of all of the income on said residue, and have paid the other one-half of the income on said residue to the impleaded defendant Pauline A. Cawker Klein.

(15) That no part or portion of the corpus of said residue has ever been paid to either said Sarah M. Cawker, Leonore Cawker, or Pauline A. Cawker Klein, but all of the same remains in the possession, control, and under the management of said executors and trustees, and that they have never set apart what in their judgment is equivalent to one-half of the corpus of the residue of said estate as provided in the fifth paragraph of said will.”

The conclusions of law are as follows:

(1) That, in and by paragraph fifth of his last will and testament, the testator, E. Harrison Cawker, gave, devised, and bequeathed to said Sarah M. Cawker, Carl Gustav Dreutzer, and Lewis M. Ogden, as executors under said will and in trust, all of the residue of his property of every kind and nature, and created a trust estate of said residue, and vested the title to all of said trust estate so created in his said executors and their successors, not subject to be divested, as to any part, during the lives of his two daughters, and gave to such executors in trust and their successors full power and authority to lease, sell, and convey said residue, or any part thereof, in their discretion, and to so manage the same that it would produce a safe and reasonable income; and that Carl Gustav Dreutzer, Leonore H. Cawker, and Pauline A. Cawker Klein are now the duly appointed, qualified, and acting executors of said last will and testament.

(2) That the true intent and meaning of said will is that a direction for the conversion of the real estate of which said testator died seized into personal property is deemed imperatively expressed in said will by necessary implication, and the realty disposed of by the said will deemed impressed with the character of personal property from the time of the death of the testator.

(3) That in and by paragraph fifth of said will the said Leonore Cawker and Pauline A. Thormaehlen, named therein, take no present, vested, or absolute legal estate in said trust estate, or any part thereof, but that each of them is vested with a beneficial interest in the respective portions of said trust estate set apart for their benefit respectively, which consists of their respective rights to have said trust estate properly managed by the executors thereof and the proper share of the net income of said trust estate paid to them, as directed by said will, as herein construed.

(4) That in and by paragraph fifth of said will the testator did confer and vest in each of his said daughters Leonore Cawker and Pauline A. Thormaehlen, respectively, a valid power to appoint by last will and testament the person or persons to whom said executors should pay one-half of said residuary estate, and that, by said power of appointment so vested in each of said daughters, the testator did vest in each of them the power to make such appointment by last will only, and that such powers are subject to the trust created, as hereinabove found, and the full execution thereof by said executors.”

1 A copy of the will is printed in the margin.

The impleaded defendant, Hortense Cawker Merrill, appealed from the judgment based on such findings of fact and conclusions of law.

The executors of the will, Carl Gustaf Dreutzer and Pauline A. Cawker Klein, ask for an affirmance of the judgment.

The plaintiff below seeks a modification of the judgment, and has filed a notice of review pursuant to section 274.12, Stats.

McGovern, Lyons, Curtis, Devos & Reiss, of Milwaukee, for appellant.

J. W. Flynn, of Milwaukee (Henry V. Kane, of Milwaukee, of counsel) for defendants respondents.

Lenicheck, Boesel & Wickhem, of Milwaukee (Frank T. Boesel, of Milwaukee, of counsel), for plaintiff respondent.

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41 cases
  • Bielski v. Schulze
    • United States
    • Wisconsin Supreme Court
    • March 6, 1962
    ...and adopted in the territory became part of the common law of Wisconsin. This view was followed by this court in Cawker v. Dreutzer (1928), 197 Wis. 98, 133, 221 N.W. 401, where we refused to be bound by an English decision of 1809 on the ground it was not a part of the common law of this s......
  • State v. Schweda
    • United States
    • Wisconsin Supreme Court
    • July 13, 2007
    ...issued after the American Revolution in 1776 are not specifically incorporated into Wisconsin's common law, see Cawker v. Dreutzer, 197 Wis. 98, 133, 221 N.W. 401 (1928), we may refer to them and cases from other states "to ascertain the principles and rules of the common law." 15A Am.Jur.2......
  • Schilling v. Schilling (In re Schilling's Will)
    • United States
    • Wisconsin Supreme Court
    • June 12, 1931
    ...direction, express or implied, to convert; but the time of the execution of the purpose may be left discretionary.” In Cawker v. Dreutzer, 197 Wis. 98, 221 N. W. 401, it was held that the testator therein intended that his real estate should be converted into personal property and that the ......
  • Northwestern Trust Company, a Corp. v. Getz
    • United States
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    • September 19, 1936
    ... ... can afford a complete and efficient remedy. Re Monaghan, 199 ... Wis. 373, 226 N.W. 307; Cawker v. Dreutzer, 197 Wis ... 98, 201 N.W. 401 ...          The ... court of probate has exclusive jurisdiction over the estates ... of ... ...
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