Hall v. Hall

• Decision Date: 11 January 1898
• Citation: 73 N.W. 1000,98 Wis. 193
• Parties: HALL v. HALL ET AL.
• Court: Wisconsin Supreme Court

98 Wis. 193

73 N.W. 1000

HALL

v.HALL ET AL.

Supreme Court of Wisconsin.

Jan. 11, 1898.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by George William Henry Hall against Samuel Hall, Emma Hall, and others. From an order overruling defendants' motion to dismiss plaintiff's petition, defendants Samuel Hall and Emma Hall appeal. Affirmed.

It appears from the record that in 1896 the plaintiff presented to the county court a petition to the effect: That one George Hall died in Dane county, January 13, 1883, testate. That such proceedings were had that March 16, 1883, the will of the deceased was duly approved and admitted to probate in and by the county court. That Samuel Hall and Henry Marsden, of Albion, were duly appointed executors thereof. That by the will he gave, devised, and bequeathed to his wife, Sarah Hall, all his personal property for life, with the remainder to his nephew, the plaintiff, son of his brother, Samuel Hall, subject to the bequest to his wife's niece, Eunice Noble, of $500, to be paid to her in case she survived his wife. That, subject to such bequest, he thereby gave, devised, and bequeathed the use, rent, and profits of all his real estate to his wife, Sarah, to have, hold, and dispose of during her life in such manner as she should deem proper, and thereby authorized and empowered her to mortgage, grant, bargain, sell, and convey any and all of said real estate at any time during her life when she deemed it necessary and proper for her to do so, and that all mortgages and conveyances by her, executed in due form of law, should have all the force and effect that they would if made by himself. That, subject to such provision, he thereby gave, devised, and bequeathed all his real estate which he then had or might thereafter acquire, not disposed of by his wife, to the plaintiff, who was to take the same subject to all liens, mortgages, and incumbrances his wife might impose thereon in her lifetime; and he also gave and bequeathed all other estate that his wife might leave at her decease to the plaintiff, subject to the foregoing provisions. That the executors duly qualified as such. That November 13, 1883, they filed their final account as executors, together with their petition, setting forth that the estate was settled, and praying for judgment adjusting and allowing the accounts, and assigning the residue of the estate to the persons entitled thereto. That thereupon an order was made by the court, dated on that day, directing that the accounts be examined and adjusted, and the matters of the petition be decided, at the January term of the county court for 1884, and that notice thereof be given. That such petition for the settlement of the accounts and the assignment of the estate contained no reference to any uncertainty in the meaning of the will, or to a construction thereof, and no prayer for the construction thereof. That the order for the hearing thereof contained no reference to the construction of the will. That January 4, 1884, an order was made by the county court appointing John M. Olin guardian ad litem of the plaintiff, who was then a minor, aged about 14 years, to appear for him, and protect his rights and interests in relation to the settlement and assignment of the residue of the estate. That Olin on that day filed his consent, in writing, to act as such. That January 4, 1884, a judgment was entered therein to the effect that after paying all expenses, and deducting hay and grain consumed by the widow on the farm, and the furniture, wearing apparel, live stock, and farming implements held by her, they had on hand, in notes and mortgages, $2,175, and cash, $578.34; making, in all, $2,753.34. That thereupon it was considered and adjudged that the account of the executors be, and the same was thereby, allowed, as stated, and that all the residue of the personal estate be, and the same was thereby, assigned to said Sarah, pursuant to the provisions of the will, to have, hold, and dispose of, in her lifetime, in such manner as she should see fit; and the remainder was thereby assigned to the plaintiff, subject to the payment to Eunice Noble, in case she survived the widow, of $500; and it was further adjudged that all the use, rents, and profits of the real estate belonging to the estate be, and the same were thereby, assigned to the said Sarah, to have, hold, and dispose of, in her lifetime, in such manner as she should deem proper; and it was further ordered and adjudged that, in case Eunice Noble should survive Sarah, then in that case there should be paid to her, upon the decease of Sarah, $500 out of the estate, and the same was thereby made a lien on the real estate, but to cease and be devested in case she should not so survive; and it was further ordered and adjudged that, subject to the contingent payment of $500 as aforesaid, and subject to the rights of Sarah, mentioned, and subject also to all mortgages, liens, and incumbrances, and to all grants and conveyances, the said Sarah might make of, or impose upon, said real estate during her lifetime, the said real estate was thereby assigned to the plaintiff, but he was to take the same subject to all liens, mortgages, and incumbrances which the said Sarah might impose thereon in her lifetime. That at the time of the hearing of the accounts and the petition for the settlement thereof, and before the entry of said judgment, the question as to what was the true intent and meaning of the will was brought up between the court, counsel, and guardian ad litem, and, without arriving at any conclusion on that subject, it was decided that such judgment should be so framed as to express the language of the will; and the court thereupon rendered and orally pronounced a judgment settling the accounts of the executors in the manner stated, and assigned the residue of the estate in the language of the will, substantially. That it was not the intention of the county court, in the rendition of such judgment, nor of the executors, nor of their counsel, nor of the guardian ad litem, that such judgment should in any manner define the meaning of the provisions of the will, but that such judgment should state the language of the last will and testament, leaving the construction thereof open for further adjudication in case any question should ever arise with respect to the true intent and meaning thereof, and that the entry of judgment in language different from the judgment actually pronounced and rendered orally by the court was a mistake upon the part of the attorney for the executors, who drafted the judgment. That, at the time of the signing and entry of judgment, it was understood by the court, the guardian ad litem, the executors, and their attorney, that such judgment, as drawn and entered, in all respects conformed to the judgment as actually pronounced, and fully expressed all of the material language of such last will and testament. That said Sarah Hall afterwards became Sarah Gillett, and died September 4, 1895. That up to the time of her death she used and enjoyed all the residue of the personal estate, and all of the real estate, except as hereinafter stated. That July 30, 1889, the said Sarah, without any consideration therefor, and by undue influence, and when she was mentally incompetent to do business, conveyed by warranty deed a large portion of...