Kehl v. Kehl (In re Kehl's Estate)

• Decision Date: 01 May 1934
• Citation: 215 Wis. 353,254 N.W. 639
• Parties: IN RE KEHL'S ESTATE. KEHL ET AL. v. KEHL.
• Court: Wisconsin Supreme Court

215 Wis. 353

254 N.W. 639

IN RE KEHL'S ESTATE.KEHL ET AL.

v.KEHL.

Supreme Court of Wisconsin.

May 1, 1934.

Appeal from a judgment of the County Court of Waukesha County; David W. Agnew, County Judge. Affirmed.

Petition by John J. Kehl and another, as executors of the will of Fred C. Kehl, deceased, against Amelia Kehl, to determine whether the latter is entitled to share in the estate as the widow of the deceased. From a judgment entered September 21, 1933, in favor of the latter, the executors appeal.

Amelia Kehl, formerly the wife of Fred C. Kehl, now deceased, commenced an action against her husband in the circuit court for Waukesha county in which she prayed for a divorce from him from bed and board. The defendant appeared by attorney in the action, but filed no answer or counterclaim. Upon the trial on August 19, 1929, at the conclusion of the testimony, the court made oral announcement from the bench that “the divorce will be granted, and you are instructed, of course, that you are not allowed to get married again within one year.” The clerk made entry in his minutes: “The court grants the plaintiff a divorce on the grounds of cruel and inhuman treatment.” The court did not at the time decide the property rights of the parties, but orally announced that an order for temporary alimony of “$10 a week would continue, until he made up his mind how the property should be divided.” No findings were filed or formal judgment entered, or anything further done in the case until November 8, 1931, when an application of the defendant for reduction of alimony was denied. The defendant died on February 27, 1932, and his will was admitted to probate. He made no provision therein for Mrs. Kehl. She filed a petition in the county court praying that as the widow of the deceased she be assigned her widow's homestead and dower rights. She also filed a notice of election under section 233.14, Stats., claiming her rights as widow in the estate of the deceased as in case of death of a husband intestate. The executors thereupon filed a petition praying that the rights of Mrs. Kehl in the estate be determined to the end that they might properly complete their administration. The court adjudged Mrs. Kehl to be “entitled to homestead, dower and widow's rights in the estate” of the decedent. From this judgment the executors appeal.Grotophorst, Quale & Langer, of Baraboo, and Tichenor & Tichenor, of Waukesha, for appellants.

Lockney & Lowry, of Waukesha (Richard N. Hunter, of Waukesha, of counsel), for respondent.

FOWLER, Justice.

The parties agree that the oral statement of the court operated as a valid judgment of divorce, under the rule of Zahorka v. Geith, 129 Wis. 498, 109 N. W. 552, wherein it was held that an oral announcement from the bench that a divorce was granted so operated without anything further being done in the matter. They differ, however, as to the kind of divorce that was granted. The appellants claim it is a divorce a vinculo; the respondent that it is a divorce from bed and board. The appellants concede that, if it is a divorce from bed and board, Mrs. Kehl is the lawful widow of the deceased and entitled to share as such in his estate.

Counsel for the appellants base their contention that the judgment should be construed as one a vinculo on the fact that as they claim, when the trial judge announced the judgment, he manifestly understood that the judgment was of that kind, and the judgment should be given effect according to his intention. They argue that such was the trial judge's intent because he stated in immediate connection with the announcement of the granting of the divorce that the parties could not lawfully remarry within a year, and that such a statement has no application to a judgment from bed and board, as the parties to such a judgment cannot remarry at all, Gallager v. Gallager, 101 Wis. 202, 206, 77 N. W. 145; because the admonition against remarrying is required by section 247.37 (3) to be given by the trial judge to the parties upon granting a judgment from the bonds of matrimony, and, as the judge gave the admonition in performance of his statutory duty, he must have understood the judgment was such as imposed that duty; because comparatively few divorces from bed and board are granted, and as nothing was said to the contrary the judge must have understood he was granting the usual divorce; and because section 247.33 provides that, in case of a judgment of divorce from bed and board, the separation may be forever or for a limited time, and if the judge had intended such a divorce he would have stated whether the separation should be temporary or permanent.

[1][2][3][4][5][6][7] The argument is not without force, but we consider that under the circumstances involved the prayer of...