In re Wilber

• Decision Date: 10 May 1881
• Citation: 52 Wis. 295,9 N.W. 162
• Parties: IN RE WILBER, ETC.
• Court: Wisconsin Supreme Court

52 Wis. 295

9 N.W. 162

IN RE WILBER, ETC.

Supreme Court of Wisconsin.

Filed May 10, 1881.

Appeal from circuit court, Trempealeau county.

July 17, 1879, Mary E. Wilber filed her petition in the county court for Trempealeau county, stating in effect that she was the widow of Asabel H. Wilber, who died in that county September 1, 1878, leaving the will and codicil admitted to probate, as mentioned in Wilber v. Wilber, infra, 163; that the executor had not permitted her to select from the household furniture, and other personal property belonging to the deceased, the portion thereof provided by law, or any part thereof; that she had not received from the estate any money or thing for her support; and prayed for an order allowing her to make such selection, and a sum sufficient for her support since his decase, to-wit, $200. The petition was resisted, principally upon the ground that the petitioner, by virtue of the deed of release, and the declaration of the testator in his will, mentioned in Wilber v. Wilber, had forever barred herself from such selection and support. After the hearing of the proofs of the issue so formed, the county court, August 5, 1879, ordered and adjudged that the prayer of the petition be, and the same was thereby, denied, with $10 costs of motion. From that order an appeal was taken to the circuit court, and after hearing and trial of the same in said last-mentioned court, it was, on June 16, 1880, ordered and adjudged by the circuit court therein that the order of the county court be reversed, and the prayer of the petition be granted, and that the matter be remitted to the county court, with directions to grant the prayer of the petition, and for further proceedings according to law, and that the costs of the appeal be paid out of the estate in the hands of the executor. To reverse which last-mentioned order this appeal is brought.Edwin W. Moore, for respondent.

Button Bros., for appellant.

CASSODAY, J.

The facts in this case are similar to those in Wilber v. Wilber, infra, 163. That concerned real estate; this, personal property. That was an action at law, and its determination depended upon the strict legal rights of the respective parties; this is in the nature of an equitable proceeding, and is to be determined by equitable rules. Brook v. Chappell, 84 Wis. 405;Appeal of Schaeffer, 41 Wis. 260;Catlin v. Wheeler, 49 Wis. 507. The petitioner made her claim under subdivision 1, § 1, c. 99, Rev. St. 1858, being the same as subdivision 1, § 3935, Rev. St. The clause preliminary to the subdivisions only makes the section applicable to...