Liginger v. Field

• Decision Date: 16 December 1890
• Citation: 78 Wis. 367,47 N.W. 613
• Parties: LIGINGER v. FIELD ET AL.
• Court: Wisconsin Supreme Court

78 Wis. 367

47 N.W. 613

LIGINGER

v.FIELD ET AL.

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Milwaukee county.

Finches, Lynde & Miller, for appellants.

D. W. Small, for respondent.

ORTON, J.

The facts necessary to present the only question on this appeal are substantially as follows: The appellants, Field, Leiter & Co., obtained a judgment for $300.27 in 1878, in the county court of Milwaukee county, against John J. Liginger and one George J. Phillips. John B. Liginger died intestate in the county of Milwaukee May 14, 1886, seised in fee of lot 10, block 97, in the said city of Milwaukee, as also of other lands, leaving the respondent as his widow, and several children as his heirs, of whom the said John J. Ligingerwas one. On the 20th day of July, 1887, an alias execution on said judgment was levied on the interest of the said John J. Liginger in said lot, and it has been advertised to be sold on said execution. The deposition of the said John J. Liginger was read in evidence on the trial, in which he testified that his father advanced to him $8,000 or $10,000, and that he gave his father a receipt in full for what was coming to him of his share of the estate, and that it was a full advancement of the estate coming to him, and, on cross-examination, that he did not give his father any receipt or note at the time for the $7,000 advanced to him in 1874. This testimony in respect to the advancement was objected to by the counsel of the appellant, on the ground that the statute requires it to be in writing. At a general term of the county court of Milwaukee county in probate, on the 3d day of May, 1887, sitting on the 14th day of May, 1887, Hon. JOHN E. MANN, Judge, presiding, the final order or judgment of settlement and distribution of the estate of John B. Liginger, deceased, was made and entered, in which it was recited or found that due notice of the time and place of hearing had been given, as required by law, and the former order of the court, “that the said deceased, in his life-time, gave to John J. Liginger, as advancements, to-wit, in the year 1874, the sum of seven thousand dollars, and in the year 1883, one thousand dollars, in cash, which amount exceeds the share to which the said John J. Liginger would be entitled to in the estate of said intestate, both real and personal, and which are further expressed in an instrument in writing dated December 3, 1883, and acknowledged by the said John J. Liginger as such; and, among other things, that he acknowledges payment in full up to date for all services rendered, and all claims, now and in the future, against the said John B. Liginger and his estate, living or dead, and that he has no further claim, in any shape, manner, or form, against the said John B. Liginger, his father or heirs, or any one else bearing the name of Liginger.” It was further recited or found therein that all the heirs of said estate, on the 25th day of May, 1886, gave to the respondent, the widow of said deceased, a quitclaim deed of all their estate, right, title, interest, and claim to certain real estate belonging to said John B. Liginger at the time of his decease, of which the lot in question was a part. It was therein adjudged “that John J. Liginger, one of the heirs at law of said John B. Liginger, deceased, received as advancements from the intestate during his life-time certain sums of money, aggregating in the whole to eight thousand dollars, and which are equal to his full share in said estate as a child and heir at law of the said deceased;” and it was thereby adjudged and decreed that “he had and was not entitled to any share in the estate of said intestate, at the time of his decease or thereafter.” It was also adjudged that “the residue of the personal estate be assigned to the respondent, the widow of said deceased, and that all of said real estate be also assigned to her, and that her administration of said estate is thereby finally settled, and she released and discharged from all further liability, and her bond canceled.”

This action is brought to restrain the sale of said lot on said execution, and to bar any supposed interest or title of the defendants therein. The defendants in their answer denied that they had threatened to levy said execution upon the personal property so assigned to the respondent, so that said lot is the only property in question. The claim of the appellants is obvious, that at the decease of the said John B. Liginger their said judgment became a lien on said property to the extent of the interest of the said John J. Liginger, which has never been divested, canceled, or removed by any judicial proceeding of which they have had any notice. I do not understand that the proceedings of the county court above stated are questioned, except that they are void and of no effect as to the appellants, the plaintiffs in said judgment, for want of notice to them. I ought to say, however, that the learned counsel of the appellants contend that the use of the words “claims” and “claim” in the written instrument acknowledging the advancements to the said John J. Liginger is insufficient to release his interest in the real estate of the intestate, and must mean some other claim due him from his father. The connection in which these words are used very clearly shows that they had reference to his interest in the estate of his father. The words “estate” and “heirs” used would be meaningless otherwise. The learned counsel contends, with some plausibility, that the statutory notice in such a case is only to those who have an immediate interest in the estate, and not to those who have a collateral interest in the estate of the heir, as in this case.

1. From the nature and effect of such an order or...