Chesterfield v. Hoskin

• Citation: 113 N.W. 647,133 Wis. 368
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 05 November 1907
• Parties: CHESTERFIELD v. HOSKIN ET AL.

133 Wis. 368

113 N.W. 647

CHESTERFIELD

v.HOSKIN ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1907.

Appeal from Circuit Court, La Fayette County; Geo. Clementson, Judge.

Action by William Chesterfield against John Hoskin and others. From the judgment, William Chesterfield appeals. Reversed and remanded, with direction to enter a judgment in accordance with the opinion.

This action was commenced October 5, 1905. The complaint alleges, in effect, that the plaintiff is seised in fee simple absolute and in the actual possession of the lands therein described; that the defendants, and each of them, make some claim to said lands, and demand judgment that the plaintiff's claim and title to said lands be established against any claim of either of the defendants; and that the defendants and each of them be forever barred against having or claiming any right or title to said lands or any part thereof adverse to the plaintiff, and for general relief, with costs. The defendants, the three Hoskins, devisees in the will, and their wives, answered by way of admissions, denials, and counter-allegations, to the effect that one William Chesterfield, Sr., father of the plaintiff now deceased, formerly owned said premises, and by his last will and testament, after giving certain specific bequests to other parties, he, by the fourth clause of his will, made the devise therein set forth, and which is found in full by the court and is sufficiently stated below. The defendants further allege that their claim to an interest in the lands described is based upon said will and the relationship existing between said testator and the defendants Stephen, William, and John Hoskin, who were children of Jane Hoskin, a sister of said testator. The cause having been tried, the court found, in effect:

(1) That the testator died testate August 27, 1887; that his will was executed October 10, 1877, and was admitted to probate November, 1, 1887. After providing for the payment of his debts and the expenses of his funeral and administration, and a bequest of $100 for procuring a suitable monument, the will contains the following provisions:

“Third. I give and bequeath unto my grandson, William Thompson, son of Spencer Thompson of Wingville, Wisconsin, the sum of two thousand dollars out of the amount now owing to me by John Jeffrey, Esq., of Wingville, Wisconsin, said sum to be invested by my executors and reinvested as occasion may require, principal and interest, until my said grandson, William Thompson, shall arrive at the age of twenty-one years, when said principal sum and interest shall be paid over to said William Thompson, provided, however, in case my said grandson, William Thompson, shall not arrive at the age of twenty-one years, then, in that event, it is my will and desire that said principal sum and said interest shall be paid to my nephews, Stephen Hoskin, William Hoskin, and John Hoskin, children of my dear sister, Jane Hoskin, share and share alike. It is also my will and desire that in the investment of said sum aforementioned, my executors shall give the said John Jeffrey the preference, and in case he desires to retain said sum on loan, to only charge and exact from him seven per cent. per annum, interest payable annually, but no more for the use thereof.

Fourth. I give, devise and bequeath unto my son, William Chesterfield, all the rest, residue and remainder of my estate, both real and personal, for him and his use during his natural life, and in case of his death without issue, and leaving a widow him surviving, then in that event I devise and bequeath all said rest, residue and remainder of my said estate, both real and personal, unto his said widow and said Stephen Hoskin, William Hoskin and John Hoskin in the following proportions, viz: One-third to said widow of my said son, and two-thirds thereof to my said nephews, share and share alike, provided however, if my said son, William Chesterfield, shall die leaving issue of his body him surviving, then in that event, I give, devise and bequeath all said rest, residue and remainder of my said estate, both real and personal, to said issue.”

The will then names James Stephens and Joseph Dickinson as executors of his will.

(2) That the deceased left him surviving no widow and one son, the plaintiff in this action, and one grandson named William A. Thompson, the son of a deceased daughter; said son and grandson being his only heirs at law. The defendants John, Stephen, and William Hoskin are nephews of said deceased, being the children of a deceased sister of said testator and the other defendants are their respective wives.

(3) That the testator died the owner in fee of the real estate described; that he also left personal estate which went into the hands of his executor--a sufficient amount to pay the legacy of $2,000 given by said will to William A. Thompson and to pay all other charges upon said estate and the expenses of administration, and no more.

(4) That an executor was appointed and the estate regularly settled, and a final decree rendered therein by the county court October 2, 1888, by which decree the accounts of the executor were settled and allowed. The testator was found to be the owner in fee of the real estate described. That all the rest, residue, and remainder of said estate, both real and personal, was by the said judgment assigned to the plaintiff under and subject to the provisions of said will. That the plaintiff, upon the death of his father, immediately entered into the possession of all of said real estate and has since that time remained continuously in such possession.

(5) August 21, 1905, the said William A. Thompson and wife by quitclaim deed conveyed to the plaintiff the premises...