Egan v. Siegel

• Decision Date: 09 December 1930
• Citation: 233 N.W. 569,203 Wis. 119
• Parties: EGAN ET AL. v. SIEGEL ET AL.
• Court: Wisconsin Supreme Court

203 Wis. 119

233 N.W. 569

EGAN ET AL.

v.SIEGEL ET AL.

Supreme Court of Wisconsin.

Dec. 9, 1930.

Appeal from a judgment of the Municipal Court for Outagamie County; Theodore Berg, Municipal Judge.

Action by D. B. Egan and others, copartners doing business as the New London Acceptance Association, against Isabelle Sells and others for foreclosure of mortgage. From a judgment of foreclosure, defendant named appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

Action begun March 26, 1929; judgment entered August 1, 1929. Foreclosure of mortgage. The defendant Isabelle Sells claims lien under will. The plaintiffs in this action sought to foreclose a second mortgage executed by Guy R. Siegel and Laura Siegel, his wife, upon the premises described in the complaint. Farmers' State Bank of New London holds the first mortgage upon the same premises. The premises in question were formerly owned by Henry Siegel, father of Isabelle Sells and Guy R. Siegel, and at the time of his death, March 9, 1925, were free from incumbrance. The father, Henry Siegel, left a will which was duly admitted to probate, the material parts of which are as follows:

“After the payment of all my just debts, expenses of my last sickness and burial and expenses of administration: I give devise and bequeath:

First to my daughter Isabelle the sum of $500 said sum of $500 is to be held in trust for her by my son Guy Siegel who is to pay said sum to Isabelle at the rate of $100 per year; that said legacy is to draw no interest, my daughter Isabelle is to have the principal only to her in the manner indicated, it is my wish that my son Guy Siegel as such trustee be required to furnish bonds for the faithful performance of said trust;

Second: All the rest, remainder of my property real and personal to my son Guy Siegel same to be his absolutely, excepting that my life insurance is to go to the beneficiaries named in the policy or policies;

Third. I nominate and appoint my son Guy Siegel as the sole executor of this my last will and testament without bond.”

The entire estate of the testator consisted of personal property of the value of $500 and the real estate upon which Guy Siegel subsequently gave a mortgage, foreclosure of which is sought in this action. By the report of the executor filed September 13, 1926, it appeared that he had disbursed for funeral expenses, medical care, and expenses of administration, the sum of $1,028. More than one year after the death of Henry Siegel and on June 5, 1926, Guy R. Siegel and Laura Siegel, his wife, mortgaged the property devised to them by Henry Siegel to the Farmers' State Bank of New London to secure a pre-existing debt of Guy Siegel in the sum of $2,500, which mortgage was recorded September 21, 1926. Subsequently and on December 23, 1927, Guy R. Siegel and Laura Siegel executed to the plaintiff a second mortgage upon the property devised by Henry Siegel to Guy R. Siegel to secure the payment of $6,000, a pre-existing indebtedness of Guy R. Siegel. On September 14, 1926, upon the report of Guy R. Siegel as executor, the following order was entered (recitals as to appearances, taxation, etc., omitted):

“Now therefore, by virtue of the power of this Court vested, it is ordered, adjudged and decreed, that said account, stated as aforesaid, be and the same is hereby allowed. That the real estate hereinbefore described be and the same hereby is assigned and transferred to the said heirs at law in common and undivided, to-wit: To Guy R. Siegel, in fee simple according to the terms of the last Will and Testament of said deceased.

It is further ordered, That the residue of said personal estate be and the same is hereby assigned as follows:

To Isabelle Sells, the sum of $500 according to the terms of the last Will and Testament of said deceased, and that upon filing satisfactory evidence of the distribution of such residue of personal estate accordingly, the said estate be and the same hereby is declared to be finally settled; said Guy Siegel released and discharged from all further liability, upon said estate and his bond as such administrator herein cancelled.”

It further appeared from the record and testimony of the county judge that no order or further steps were ever taken with respect to the administration of said estate, no receipt was filed showing payment of the $500, nor did Guy R. Siegel ever file any bond as trustee. It appears at the time of the probate of the will, Guy R. Siegel was considered financially responsible in a very much greater amount than $500. After he became involved in financial and other difficulties (see Siegel v. State, 201 Wis. 12, 229 N. W. 44), Mrs. Sells became concerned in regard to the payment of the $500 legacy and testified that she thought the $500 was assured to her and that she could not, as she expressed it “be beat out of it.” On December 27, 1928, Guy R. Siegel gave a deed of the property in question to Isabelle Sells. The trial court made no specific finding of fact with respect to the payment or nonpayment of the legacy, but found as follows:

“I find that the defendant Isabelle Sells is not entitled to a lien against the realty above described as being in Outagamie County, for which she makes claim in her answer in said action. The claim of the said defendant for such lien being based upon the will of Henry Siegel, deceased, and in particular upon the following provisions therein: (Provisions of will quoted.)

The Court finds that Henry Siegel, deceased, did not impose a lien upon the residue of his estate, consisting of real property, in favor of Isabelle Sells, to secure the payment of a legacy bequeathed to her in his will. If this had been his intention he would not have required his son, Guy R. Siegel ‘to furnish bonds for the faithful performance of said trust.’ This requirement to furnish bonds cannot be considered as mere surplusage.”

And concluded as a matter of law that the defendant Isabelle Sells “is not entitled to a lien against any of the realty of the defendant Guy R. Siegel.”

Judgment of foreclosure was entered accordingly, from which the defendant Isabelle Sells appeals.

Bouck, Hilton, Kluwin & Dempsey and Henry Hughes, all of Oshkosh, for appellant.

William J. Butler, of New London, for respondents.

ROSENBERRY, C. J.

It is the contention of the defendant Isabelle Sells that the will of her father, Henry Siegel, by necessary implication, charged the payment of the $500 legacy given to her by the will upon the real estate in question. The trial court was of the view that the provision of the will requiring Guy R. Siegel as trustee to give a bond for the faithful performance of the trust repelled this inference. If the will had been fully executed and the bond had been given and approved by the court, an entirely different situation would be presented. Here the will was not fully executed, the bond was never given, nor the legacy paid. It is undisputed that the plaintiffs as well as the other parties claiming under Guy R. Siegel had actual or at least constructive notice of the rights of Isabelle Sells, whatever they may be.

[1] It is apparent from a consideration of the language of the will that it does not specifically create a lien upon the real property in question as security for the payment of the $500 legacy. The situation is this: The estate was composed of the real property in question and personal property of the value of $500. All of the personal estate and more was expended in paying the expenses of testator's last illness, funeral expenses, and expenses of administration. If payment was to be made therefore from the estate of the testator, it must be made from the real property. Considering the situation of his estate at the time of his death, the testator must have contemplated that the $500 would be derived...