Lichter v. Thiers

• Decision Date: 11 May 1909
• Citation: Lichter v. Thiers, 139 Wis. 481, 121 N.W. 153 (Wis. 1909)
• Parties: LICHTER v. THIERS ET AL.
• Court: Wisconsin Supreme Court

139 Wis. 481

121 N.W. 153

LICHTER

v.THIERS ET AL.

Supreme Court of Wisconsin.

May 11, 1909.

Appeal from Circuit Court, Kenosha County; E. B. Belden, Judge.

Action by John Lichter against Natalie Thiers, by Thomas M. Kearney, her guardian ad litem, and others.From certain orders, certain defendants appeal.Reversed in part, affirmed in part, and remanded.

The complaint was to this effect: June 26, 1885, John Lamb and Anna, his wife, conveyed to William Stanbridge a life estate in certain real estate, specified, of which said John Lamb was owner in fee.Subsequently both grantors died, said John Lamb leaving a will, executed July 20, 1885, with a codicil subsequently executed, which was duly proved and probated in the county court for Kenosha county, Wis., in which county the land in question was located and the testator lived at the time of his death.Judgment was rendered in the probate proceedings assigning the land in accordance with the will, February 3, 1887.Except for the conveyance aforesaid, John Lamb owned the real estate at the time of his death.He disposed of the same by will at first, as follows:

“I give and devise to Mary Elizabeth Lamb Stanbridge all the residue and remainder of my estate wherever the same may be situate, to be by her used and enjoyed during her natural life and upon her decease, the same to be equally divided among her living children and the heirs of those children which may have deceased by right of representation, if she shall have had such children or descendants of children and they shall be living at her death--with power as soon as the eldest child shall arrive at the age of twenty-one years--or at any time thereafter, to alienate and dispose of the whole or any part of the remainder over after the determination of the life estate, in favor of such child or children in equal or unequal parts in her discretion and thus divest the contingent remainders.And further in the discretion of said Mary Elizabeth Lamb Stanbridge, devisee of the life estate in the premises, in the contingency that she shall leave no child or descendants of children living at her death, to have power to dispose of the whole of such estate by will to any party or persons she may choose or prefer subject to the bequests hereinafter named.”

He referred to the same matter in the codicil, thus:

“In the event of my granddaughter Mary Elizabeth Lamb Stanbridge dying childless or having no heirs by right of representation and making no will or other disposition of the property hereinafter referred to in this codicil, I give, devise and bequeath the property my said granddaughter had the power of disposing of by will under the above will but should have failed to do so, to my nephew (by marriage) now a resident gentleman farmer of Herefordshire, England, John Stephens or John Taylor Stephens, son of John Taylor Stephens, formerly of Shobden, Herefordshire, England, tanner and farmer, and Jane Stephens, his wife, neé Jane Turner, of Kington, Herefordshire aforesaid, said property to become the property of my said nephew John Stephens and his heirs in fee simple.”

William Stanbridge and John Taylor Stephens are dead.Mary Elizabeth Lamb Stanbridge is now the wife of Louis M. Thiers and known as Elizabeth S. Thiers.March 10, 1887, she, without covenants of warranty, deeded her interest in the property in question to William Stanbridge who, October 7, 1905, by deed with full covenants, conveyed the land to plaintiff.The conveyance last made was intended by both parties thereto to pass full title in accordance with the terms of the instrument and the transaction was supported by an adequate consideration.Plaintiff has been in the actual occupancy of the land since the date of his deed.All instruments were duly recorded.DefendantElizabeth S. Thiers, notwithstanding the facts aforesaid, claims to have power to devise the property in question, and defendantNatalie Thiers claims to have a vested remainder therein.

DefendantNatalie Thiers, by way of defense and counterclaim as well, answered to the effect: That she is an infant represented by her guardian ad litem; that December 9, 1896, she became, and ever since has been, the duly adopted child of defendantsElizabeth S. Thiers and Louis M. Thiers and, as regards property rights, has the status of a child of their blood under section 4024, St. 1898, and that she is their only child, and as such answers the call for a child of said Elizabeth S. Thiers, so far as whether the latter is childless or not, affects the title to the real estate in question under the will of John Lamb, deceased.

The facts stated by the defendant Natalie were pleaded against her codefendants as well as against the plaintiff.

DefendantsElizabeth S. Thiers and Louis M. Thiers demurred to the complaint for insufficiency and likewise demurred to the adverse claim of their codefendant Natalie.Plaintiff demurred, for insufficiency, to the counterclaim.The first was overruled and the other two sustained.

There was an appeal by defendant Natalie from each of the adverse rulings as to her, and an appeal by her codefendants from the adverse ruling as to them.

Thomas M. Kearney and Peter Fisher, for appellants.

Quarles, Spence & Quarles (Louis Quarles, of counsel), for respondent.

MARSHALL, J.(after stating the facts as above).

It is plain that under the will of July 20th 1885, subject to some possible burdens which are immaterial to this case, John Lamb devised to his granddaughter, defendantElizabeth S. Thiers, spoken of in such will as Mary Elizabeth Stanbridge, a life estate in the realty in question, after the termination of a preceding life estate conveyed to her father, William Stanbridge--which is also immaterial to this case, the same having terminated by his death--remainder over to her children and descendants of such, in case of there being any such children or descendants at the time of her death, with a power in trust to terminate the contingent remainder, in her discretion, by conveying the property to such children, or any of them, upon the happening of a specified event, and with a further power in trust to dispose of the remainder by will to whomsoever she might see fit, in case of her decease leaving no children or descendants of children.

The learned trial court regarded the codicil as having been intended to change the qualified title of Elizabeth to an absolute title and that such intention is indicated, clearly, by use of the words “and making no will or other disposition of the property,” etc., the idea being that the primary testamentary idea was to vest power in Elizabeth, in case of her dying childless, to dispose of the property by will, whereas the codicil recognized a right to make disposition thereof generally.

We are unable to read the meaning suggested out of the codicil.The testator recognized the possibility of Elizabeth dying childless and leaving no descendants of children, a condition definitely provided for before, also the possibility of her having children and terminating the estate in remainder, in whole or in part, by a conveyance, or conveyances, as provided in the will, which disposition is quite clearly, the event referred to by the words of the codicil, “or other disposition,” and then guarded against the possibility of the property going to strangers of his blood, without choice on his part, for want of great-grandchildren or descendants thereof to take, by creating the remainder over to his nephew by marriage, residing in England, and his heirs.To so guard against such possibility seems to have been the sole purpose of making the codicil, and the intention in that regard is too clearly expressed to leave any reasonable doubt about it.The result is that the title of Elizabeth was not enlarged by the codicil, while power in respect to such title was materially restricted.So the demurrer of the defendants Elizabeth S. and Louis M. Thiers to the complaint should have been sustained.

Whether the demurrer of the Thiers to the counterclaim of Natalie Thiers and that of her codefendants to the same matter, were properly sustained depends upon whether Natalie, as the child of her codefendants by adoption, is a child of Elizabeth, within the meaning of the will.

Counsel for appellants rely on section 4024, St. 1898, relating to the status of adopted children, as if such section were controlling instead of being, as regards a case of this sort, as it in fact is, at best a mere aid in construing.One must always look to the will to be construed to determine its meaning, having due regard to the existence of any statute or legal principle of the unwritten law or other circumstance which the testator may have had in mind at the time of expressing his testamentary wishes, which will aid in reading the language from the standpoint of the testator when he used it.As we have said, rules of law may aid in discovering the meaning of a will, which is obscure, but they cannot control or defeat it, except in case of its being in violation of law so as to leave the property involved intestate.In other words, it is given to every...