Leach v. Leach

• Decision Date: 23 February 1886
• Citation: 26 N.W. 754,65 Wis. 284
• Parties: LEACH, EX'R, ETC., v. LEACH.
• Court: Wisconsin Supreme Court

65 Wis. 284

26 N.W. 754

LEACH, EX'R, ETC.,

v.LEACH.

Supreme Court of Wisconsin.

Filed February 23, 1886.

Appeal from circuit court, Kenosha county.

It appears from the record, and the court found, in effect:

That June 12, 1876, the deceased, William Leach, and the defendant were married, at which time said Sarah owned 40 acres of land and $600 personal property; that June 27, 1876, they mutually agreed, in writing under seal, to relinquish and release to the other all right, title, and interest in and to all the estate and property which the other then had, or might thereafter acquire, and giving free and full consent to the other to will, bequeath, and dispose of any and all such property, both real and personal; that they lived together as such husband and wife on said William's homestead farm, in the town of Brighton, in Kenosha county, from the time of their marriage until November 21, 1879, when said William died, leaving him surviving said Sarah as his widow, who was then about 75 years of age, and 32 nephews and nieces, but no child, nor brother nor sister, nor father nor mother; that at the time of his death he was seized and possessed in his own right of real estate in Kenosha county valued at $14,966, and personal estate therein valued at $14,916.29, making $29,882.29; that upon his death he left his last will and testament, which was executed June 5, 1879, and was admitted to probate in the county court for Kenosha county, January 6, 1880; that, by the will, he gave, devised, and bequeathed to his nephew John Leach, (the plaintiff,) then living in his family, all and singular the property, real, personal, and mixed, which he might own or have any interest in, at the time of his death, subject to and charged with the conditions and provisions therein contained; that, after several gifts and bequests, the testator, in the sixth clause of the will, gave to said John Leach $2,000, “to the exclusion and in preference to any thing or sum” thereinafter named; that by the seventh clause he gave to said John Leach the free use of all his farm tools, implements, machinery, farm, stock, and all household furniture, excepting his melodeon, to hold the same until the final distribution of his estate, four years after his death, being accountable only for the actual cash value at which they should be appraised at the date of the inventory to be made, and also thereby gave said John Leach “all farm produce, such as grain, hay, feed, etc., including growing crops;” that by the eighth clause, he gave said John Leach the free use and occupation and rental of his homestead farm, in said town of Brighton, on which he then resided, containing about 350 acres, for four years after his death, provided he, during the time, paid all taxes, kept the buildings reasonably insured, and kept up necessary repairs at his own expense, and provided he permitted his then present wife, (the defendant,) if she should survive him, to occupy the west wing of his “homestead, during her life-time, free of rent, and also provide her with fuel sufficient for one stove, properly prepared for the same, and also allow her the joint use of the cellar.”

That by the ninth clause he gave to said John Leach $1,000, in trust for a purpose named; that by the eleventh clause, after the payment of debts, expenses, and the bequests named in the will, and at the end of four years after his death, he gave and bequeathed to said John Leach all and singular his property, real, personal, and mixed, which he might own at the time of his death, including all rents and interest accruing during the four years, subject to and charged with the conditions and provisions that he should pay to each of his nephews and nieces, and also reserve for himself, a sum of money constituting an equal share of all his estate last above bequeathed to him, including money received and realized from the sale of such real estate as did not constitute his homestead farm; that he therein expressed the desire that said homestead farm should be retained by said John Leach, at the valuation of $12,000, including all the farm personal property belonging thereto which might be on the same at the time of his death; that if he survived any of his nephews or nieces, then the share of such one should go to the heirs of his or her body, but, if no such heirs, then to be equally divided between the other surviving nephews and nieces; that said John Leach should have no compensation for his services in settling and managing the estate, except “actual disbursements;” that said nephew, John Leach, and his nephew Oliver Leach were appointed executors of his will; that there were 32 residuary legatees, including said John and Oliver Leach, interested in said estate; that on the same day that said will was admitted to probate, to-wit, January 6, 1880, letters testamentary were by said county court duly issued to the said John and Oliver Leach, as such executors, and on the same day they both duly qualified and entered upon their duties as such executors; that on the same day the said Sarah Leach, as such widow, filed with the county judge of Kenosha county, with the papers in the matter of said estate, a notice in writing, by her signed with her mark, dated January 5, 1880, to all whom it might concern, that she, as such widow, thereby elected “to take the provision made for her by law instead of the provision made for her in and by the said last will and testament of her deceased husband, the said William Leach,” and therein prayed the county court to file such notice with the papers in the case; that January 6, 1880, she signed a paper with her mark, addressed to said executors, whereby she, in effect, proposed to release all claim to dower, all right to homestead and personal property in the estate of said deceased, for the sum of $2,000, to be paid to her within 60 days from that date, together with the use of the west wing of the house on the homestead during life, and be provided with fuel for one stove, and the joint use of the cellar under said house, during the term of her natural life, which proposition purported to be so “made solely for the purpose of settlement,” and “to remain open for thirty days.”

That prior to said January 6, 1880, when said widow made said written proposition, said Oliver Leach had an interview with her, and, in consequence of what occurred between them at said interview, she made said proposition, but what occurred at said interview is not disclosed by the evidence; that January 24, 1880, the appraisement of the real and personal property belonging to the said estate was made and computed; that thereupon the said John and Oliver Leach, as such executors, filed in said county court their inventory of said estate, together with said appraisement, showing the real estate to be of the value of $14,966, and the personal property of the value of $14,916.29, making $29,882.29; that about February 1, 1880, said executors and legatees accepted said written proposition so made by said widow, and thereupon, as such executors, paid her, February 7, 1880, $2,104, and she thereupon, and at the same time, under her hand and seal, and for and in consideration of the sum last named, executed a deed to the said John Leach and Oliver Leach, as such executors, wherein and whereby she remised, released, conveyed and quitclaimed unto the said executors, “their heirs and assigns forever, all the right, title, interest, claim, and demand which” she had in and to all the real estate therein described (being all of which the testator died seized) “as widow and heir” of said deceased, “whether such interest be of the nature of dower, lifeestate, estate in remainder or reversion, or otherwise,” and she also thereby granted, transferred, and conveyed to the said executors all her “right, title, and interest in and to all personal property, of whatsoever nature or name, forming part of the estate of said William Leach, and all claim which, as his widow,” she might have thereto, and recited that said deed was given to enable said executors to carry out the provisions of the will, etc.; that said executors, at the time said proposition was made and accepted, and said deed made, executed, and delivered to them by said Sarah Leach, were fully in formed of the amount, extent, and value of the real estate of said deceased, and her rights and interests in the same, after she made her said election, and its value, “but they failed and neglected to inform her of said rights and interests, but withheld the same from her, as well as its value;” that said widow was over 70 years old when her said husband died; that she could neither read nor write; that she was ignorant of the amount, extent, and value of the said real and personal estate at the time she made her election not to take under the will, but under the statutes; that she was also ignorant of the same when she made said written proposition, and also when said proposition was so accepted, and also when she made said deed and transfer.

That said Oliver Leach resigned the said office of executor, and the same was accepted by said county court, November 9, 1881, and the said John Leach gave further bond, and qualified as sole executor and trustee; that January 30, 1884, said John Leach filed his account as such executor in said county court, and his petition to have it allowed, and prayed that the residue of the estate be assigned to such persons as were, under the will and by law, entitled to the same; that said widow had an apoplectic fit November 5, 1880, and was not able to transact business thereafter; that Walker Whitney was appointed her guardian ad litem, May 15 or 16, 1884; that May 16, 1884, the county court adjudged that said widow was entitled to take under the statute, regardless of said post-nuptial agreement, or her said deed of release; from which judgment the said John Leach appealed to the circuit court, ...