Liesse v. Fontaine

• Decision Date: 16 October 1923
• Parties: LIESSE ET AL. v. FONTAINE.
• Court: Wisconsin Supreme Court

181 Wis. 407

195 N.W. 393

LIESSE ET AL.

v.FONTAINE.

Supreme Court of Wisconsin.

Oct. 16, 1923.

Appeal from Brown County Court; Alvin E. Davis, Judge.

Proceeding for settlement of the final account of A. B. Fontaine, administrator of the estate of B. Fontaine, deceased. From a decree allowing the account and assigning the estate, Arthur Liesse and others appeal. Affirmed.

This is an appeal from a final judgment distributing the estate of B. Fontaine, deceased. The appellants, Arthur Liesse, Ella Hallett, and Eva Jacqmin are children of Matilda Labby, a daughter of the intestate. Matilda Labby died in May, 1909. B. Fontaine died intestate in January, 1910, leaving surviving him his widow and five children. The appellants seek to share in the estate by right of representation.

Letters of administration were issued to A. B. Fontaine in May, 1911. He filed a final account as administrator in August, 1912, but never took the necessary steps to close up the estate. In 1921 the appellants filed an application for the settlement and allowance of the administrator's account and the assignment of the residue of the estate to such persons as were by law entitled to it. In October, 1921, they filed objections to the final account, and a hearing was ordered. The administrator then filed, as a bar to the right of the appellants, the following instrument:

“March 12, 1901. In consideration of the sum of which my father, Benjamin Fontaine, has expended in improving the Cook Hotel property, and which I am unable now to repay him, the sum with interest amounting to over $6,000, I hereby acknowledge that I have received my just share in his estate, and hereby release and surrender all claim or claims which I now have or may hereafter acquire by the death of my said father, of, in and to the property, real and personal, constituting or which may constitute his estate. Matilda Labby. [Seal.]”

The instrument was signed in the presence of two witnesses and acknowledged before a notary public.

It appeared that Matilda Fontaine married Gustave O. Liesse, who left her, in 1892, a widow with three minor children, the appellants. His estate consisted of a homestead of the value of $1,000, personal property of the value of $1,700, and a half interest in the Cook Hotel, appraised at $10,000. The interest in the hotel was devised to the children, the will providing that the widow should receive the income and expend it for the benefit of the children during their minority.

For several years prior to 1899 there had been no net income from the hotel. In that year the property was repaired and remodeled at a cost of approximately $18,000. Of this amount, $3,000 was supplied by Matilda Liesse, $6,000 by Benjamin Fontaine, her father, who had been named executor of the will, and the balance by the owner of the other half interest. Shortly thereafter the hotel produced a net income of $200 per month. The property was sold in 1913 for $54,000. The money furnished by B. Fontaine had been procured on his notes, which he took up prior to March, 1901. On March 19, 1901, B. Fontaine petitioned the county court to order that the interest of the minors be mortgaged to their mother, Matilda Labby, the petition setting out that the mother was willing to pay the $6,000 indebtedness in case the mortgage was executed. The mortgage was ordered executed. One week prior to the petition the writing signed by Matilda Labby, above quoted, had been executed. The mortgage was in the sum of $9,000, bore no interest, was never recorded, and Matilda Labby never made any claim under it.

In February, 1899, Matilda Liesse married one Labby. She obtained a divorce from him on November 9, 1901, the complaint alleging nonsupport and cruelty.

The trial court found that when the money was supplied by Benjamin Fontaine it was given as a loan; that in 1901 Matilda was unable to repay it out of her separate estate; that on March 12, 1901, the date on which the instrument in question was executed, a settlement was made whereby her obligation to her father was canceled, and she relinquished any right she might have to share in his estate; and that the mortgage executed on behalf of the children was in pursuance of this agreement.

Judgment was ordered allowing the account of the administrator and assigning the residue of the estate to heirs other than the claimants.

Cady, Strehlow & Kaftan, of Green Bay, for appellants.

Silverwood & Fontaine, of Green Bay, for the estate.

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

It is the first objection to the judgment in the trial court that the release of an expectancy as heir before the ancestor dies is void, since at the time the heir has no interest in the estate, and there is nothing to release. This is the common-law rule, and it is adhered to in a few jurisdictions.

[1] In some of the cases holding this rule it is said that it is in harmony with the general policy of statutes providing for the distribution of estates, and that such agreement on the part of the child may work serious disadvantage. But it seems to be the rule held by the great weight of authority that, when a child accepts and has the benefit of an advancement received as his full share of the parent's estate, he is bound by the provisions of the agreement under which he receives the advancement. The estate of the parent may increase during his lifetime, and for that reason the agreement may operate to the disadvantage of the child. On the other hand the present use of the sum advanced may be of greater benefit to the child than the probability of receiving a greater sum on the death of the ancestor.

[2] The arrangement by which the advancement is made should be free from fraud or undue influence on the part of the parent and satisfactorily proven, or in the manner provided by statute if there is a statute regulating the subject. Many of the authorities discussing the subject will be found collected in 65 L. R. A. 578, 17 Ann. Cas. 725, and in 1 Ruling Case Law, 674, 675.

It is argued by appellants' counsel that an advancement cannot be proven by parol. This proposition is conceded by counsel for respondent. Our statute provides:

“All gifts and grants shall be deemed to have been made in advancement if they are expressed in the gift or grant to be so made or if charged in writing by the intestate as an advancement or acknowledged in writing as such by the child or other descendant.” Section 3959, Stats.

And this court has held oral evidence to prove an advancement is inadmissible. Arthur v. Arthur, 143 Wis. 126, 126 N. W. 550;Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430. It will be observed that the statute does not require that any agreement be signed by both parties.

[3][4] In the present case there is no writing by the father, but there was a written acknowledgment by the child which satisfied the terms of the statute. Parol testimony showing the surrounding circumstances, the fairness of the agreement, and that there was adequate...