O'Hearn v. O'Hearn

• Decision Date: 13 May 1902
• Parties: O'HEARN ET AL. v. O'HEARN.
• Court: Wisconsin Supreme Court

114 Wis. 428

90 N.W. 450

O'HEARN ET AL.

v.O'HEARN.

Supreme Court of Wisconsin.

May 13, 1902.

Appeal from circuit court, Green Lake county; Geo. W. Burnell, Judge.

Bill by Dennis O'Hearn and others against Patrick O'Hearn and others for partition. From a decree in plaintiffs' favor, defendant Patrick O'Hearn appeals. Reversed.

Action for partition. All parties claim title from a common ancestor, Patrick O'Hearn. In 1870 the latter made a will bequeathing all his personal property to his wife, Ellenor, during her life, and at her death one-half was to go to her son, the defendant Patrick. He also devised all his real estate to his wife for life, describing it, and upon her death one-half of the same was devised to defendant Patrick. No mention was made of other children, and no disposition of the other half of his personal or real property was made by the will. After his death, and on June 23, 1870, his will was duly admitted to probate. He left surviving him his wife, Ellenor, and three children, the defendant Patrick, his daughter Bridget Doherty, and a son John, as his heirs at law. The widow died in 1899. John died in 1879, leaving his son Dennis O'Hearn and a daughter, the plaintiff Mary E. Emery, as his heirs at law. The plaintiff Elizabeth is the wife of Dennis. The plaintiffs bring this action for partition of the real estate left by Patrick, Sr., alleging that the plaintiffs Dennis and Mary are entitled to one-fourth of the estate as the heirs of John, their interests therein being each one-eighth, the defendant Bridget was entitled to one-fourth, and the defendant Patrick one-half. The defendant Patrick, having been adjudged mentally incompetent, appeared by his guardian, and set up as matter in abatement that the title to the land sought to be divided was in dispute, and that the rights and interests of the several parties had never been determined at law, and could not be determined in this action. He also set up the facts in relation to the will of his father, and claimed that as to one-half of the estate his father died intestate; that he was entitled to one half of the land under the will, and to share equally with the other children in the other half as heir of his father. The interests in the estate were alleged to be as follows: Dennis O'Hearn, one-twelfth; Mary E. Emery, one-twelfth; Bridget Doherty, one-sixth; Patrick O'Hearn, two-thirds. The trial court overruled the answer in abatement, and found that it was the intention of the testator, as expressed in the will, to give the defendant Patrick one half only of the real estate described in the will, and to give the other half to his other children; that, in order to effectuate the testator's intention, there should be added to the will the words, “and the balance to my other two children.” The rights of the parties were decided on that basis, a partition was ordered, and the usual order of reference made. Due exceptions were filed, and the defendant Patrick appeals.

John J. Wood, Jr., for appellant.

Clark & Sarau, for respondents O'Hearn and Emery.

W. E. Cavanaugh, for respondent Doherty.

BARDEEN, J. (after stating the facts).

1. The answer in abatement was properly overruled. The only matter in dispute was as to the interest each was entitled to from the common ancestor. The answer admitted that the other claimants had an interest in the land. The only issue presented was as to the size of these interests. We see no reason why the controversy may not be determined in this action. See Morgan v. Mueller, 107 Wis. 241, 83 N. W. 313. The case is clearly distinguishable from Deery v. McClintock, 31 Wis. 195. In that case the defendant McClintock set up a paramount title to the lands sought to be partitioned, and the court held that the remedy at law was adequate, and that where the mere legal title was the subject of controversy and in doubt it would not be adjudicated in an action for partition. Here the parties claimed title from a common ancestor. The size of the interest of each depends upon the proper construction to be given to the will which attempted to dispose of the property. The matter of the construction of the will was of cognizance in equity. The answer having admitted an absolute interest in the plaintiffs in the property, the amount or size of which depends upon the true construction of the will, we think the court had power to settle the controversy. See Tobin v. Tobin, 45 Wis. 298.

2. The trial court held that plaintiffs and the defendant Bridget took title under the will rather than as heirs at law of the father, and adjudged their interests upon that basis. To reach this conclusion he was obliged to hold that a devise arose to them by implication. He admitted that to so hold was perhaps “a greater stretch of implication or inference” than could be found in any of the cases. The will contained no residuary clause. The only persons named in it were his wife and the defendant Patrick. There is not a word or a...