Kelley v. Kelley

• Decision Date: 17 November 1891
• Citation: 50 N.W. 334,80 Wis. 486
• Parties: KELLEY v. KELLEY ET AL.
• Court: Wisconsin Supreme Court

80 Wis. 486

50 N.W. 334

KELLEY

v.KELLEY ET AL.

Supreme Court of Wisconsin.

Nov. 17, 1891.

Appeal from circuit court, Dodge county; A. SCOTT SLOAN, Judge.

Action in equity by Minnie C. Kelley against Joseph Kelley and others for a construction of a will. From an order overruling the demurrer to the complaint defendants appeal. Reversed.J. E. Malone and I. C. Sloan, for appellants.

George W. Sloan and James J. Dick, for respondent.

COLE, C. J.

This action is brought to obtain a construction of a clause in the will of Michael Kelley. The testator died in September, 1881. His will was admitted to probate, and the executors rendered their final account in April, 1883, which was allowed, and they were discharged from their trust. Michael Kelley, in the second clause of his will, gave and devised to his son John the 80 acres of land described, “to have and to hold, possess and enjoy, so long as he shall occupy the same and pay the taxes thereon; but, in case my said son shall abandon the possession of said land, or neglect to pay the taxes thereon whenever the same shall be due and payable, his interest in said land shall terminate, and the title to the same shall be and vest in my sons Joseph and Frank and their heirs absolutely.” John Kelley took possession of the land devised to him in this clause of the will, and occupied the same, paying the taxes thereon up to the 17th day of July, 1887, when he died. The taxes have been paid since by Joseph Kelley, the administrator of John's estate. That estate has likewise been settled, and the administrator has been discharged. The plaintiff is the heir and only child of John Kelley by a divorced wife, and was living in Oregon when all these proceedings were had. She was a minor, and knew nothing about them, and neither made an appearance nor was represented by a guardian in any of them She states that Joseph and Frank Kelley claim the land devised to her father, and have entered into the possession of the same, because the title or estate of John has been divested by his failure to perform the conditions of the devise. Her contention is that the estate under the will vested in her father absolutely, in fee, on a condition subsequent, and that, as performance became impossible in consequence of his death, it was not divested, but descended to her as his heir at law; hence a construction of the clause in the will is sought. The appellants demurred to the complaint on the ground that the plaintiff had an adequate remedy at law, and that, therefore, the complaint should be dismissed. The circuit court overruled the demurrer. It is insisted that the demurrer should have been sustained for the reason therein stated. It is not claimed, nor could it well be under the authorities, that a court of equity would not exert its jurisdiction in a proper case on the application of an heir to construe a will. Such a jurisdiction has frequently been invoked in this and other courts, and has been exercised without question. But it is likewise a well-settled rule that a court of equity will not entertain or exercise jurisdiction where the party has a complete and adequate remedy at law, when the objection to such jurisdiction is seasonably taken. Where equity can grant the relief to which the plaintiff is entitled, and the objection is not duly taken, it is deemed waived. But where the objection is taken by demurrer, as here, that the party has a complete and adequate...