McLenegan v. Yeiser

• Decision Date: 23 September 1902
• Parties: MCLENEGAN ET AL. v. YEISER ET AL.
• Court: Wisconsin Supreme Court

115 Wis. 304

91 N.W. 682

MCLENEGAN ET AL.

v.YEISER ET AL.

Supreme Court of Wisconsin.

Sept. 23, 1902.

Appeal from circuit court, Rock county; B. F. Dunwiddie, Judge.

Action by Sarah F. McLenegan and others against George O. Yeiser and others. Judgment for plaintiffs. Defendant Yeiser appeals. Reversed.

In 1869 one E. C. Reigart died testate in Pennsylvania, leaving a large estate, both in Pennsylvania and in Wisconsin, which, in the latter state especially, consisted largely of real estate. His will attempted, in addition to certain special donations, to divide his estate amongst his seven children, the method adopted being to devise specified lands for the benefit of each child, apparently in each case already occupying those lands, and to fix a value upon such specific lands, to be charged against the child as a part of his or her one-seventh of the estate. Such devise of lands in each instance was attempted to be made not directly to the beneficiary, but to some other persons in trust for the beneficiary for life, and for his or her descendants upon his or her death, with provision as to some of the children for a further remainder to heirs of the testator upon failure of issue. Amongst these several devises is No. 14, specially involved in the present action, which was in the following words: “The following described four tracts of land and premises, lying contiguous in the town of Turtle, Rock county, state of Wisconsin, to wit, * * * I give and devise to my sons, James H. Reigart and John Reigart, and to their heirs and assigns, in trust, however, for the use of my before-mentioned daughter, Annie C. Slaymaker, for and during the term of her natural life, and at her decease in trust for the use of all the children of the said Annie C. Slaymaker then living, and the issue and descendants of any of them being then dead, their heirs and assigns, forever, per stirpes, in equal shares and parts, subject, however, to the payment of five hundred dollars annually to the husband of said Annie C., if she leave one surviving her, during the time he shall remain unmarried; and in default of any child, children, or descendants of my said daughter, Annie C. Slaymaker, living at her decease, then in trust for the use of my heirs at law, now or then resident in the said state of Wisconsin, in fee, subject as aforesaid; and I charge the said real estate so devised in trust for her use, etc., to my said daughter, Annie C. Slaymaker, at and for the sum of eighteen thousand dollars, to be accounted for in the distribution of my estate.” After thus defining the rights of the several devisees, direction is given in several paragraphs for the sale, either by executors or trustees, of certain pieces of real estate, and then comes paragraph 21, in the following language: “If any of my children shall deem it advantageous to have the real estate hereinbefore devised in trust for their use severally during life sold, and shall request the trustee or trustees who hold the same to sell it, then I order and direct the trustee or trustees to sell and dispose of the same, or any part thereof, and convey it to the purchaser or purchasers, his and their heirs and assigns, in fee simple, clear, free, and discharged from the trust, and to hold the proceeds of the sale thereof, or invest the same in the purchase of other real estate in any of the states or territories of the United States of North America, wherever the cestui que trust shall desire it, and take and hold the same in trust for the same uses and purposes as the premises sold were held under this will.” In June, 1871, at the request of Annie C. Slaymaker, the trustees named in the fourteenth paragraph of the will in form sold and conveyed the real estate named in that paragraph to one Magraw for the expressed consideration of $18,000, which was paid, $15,000 thereof by a mortgage upon the same land, securing notes of Annie C. Slaymaker and her husband, payable 25 years after date, with 2 per cent. interest; said notes being payable to said Magraw, and by him indorsed without recourse to the trustees. The further consideration was paid by notes of said Annie C. Slaymaker and her husband for $3,000, secured by mortgage upon other property, never recorded, but which have been by the trustees marked “Canceled,” and delivered up. The deed to Magraw declared that it was made in pursuance of the power of sale in trust contained in E. C. Reigart's will, and contained full covenants of warranty, and that it was made in pursuance of the request of Annie C. Slaymaker, who, in evidence thereof, joined therein. In February, 1872, Magraw executed and delivered conveyance of the same lands to Annie C. Slaymaker and her husband for the expressed consideration of $18,000, which deed was recorded in August, 1875. Samuel H. Slaymaker, husband of Annie C., died in the year 1882, childless, and by will devised all his property to her. Thereafter she married the appellant, George O. Yeiser, who was her husband at the time of her death, which occurred in March, 1900, she leaving no children or descendants, and by will bequeathing and devising all her property to her husband, the appellant. In 1885 the trusteees, James H. and John Reigart, were removed from their trust, and H. H. McLenegan, one of the defendants, was appointed in their place. The plaintiffs are certain of the children and certain children of deceased children of the original testator, other of his heirs at law being joined as defendants. The complaint denies the validity of the trust; denies any authority in the trustees to make the sale in question; contends that, if such power existed, the sale was collusive, and intended merely to transfer the legal title to the life tenants, in fraud of the purposes of the will and the rights of the remaindermen; prays construction of the will, the avoiding of that conveyance, and the reclamation of the specified real estate to the existing heirs at law of E. C. Reigart. The court found that said testator left surviving seven children, who were all of his heirs at law. Of these, one never resided in Wisconsin. All of the others did reside there, either at the time of the testator's death or of Annie C. Slaymaker's. That certain of said children had in the interval died, each of them leaving descendants, some of whom resided in the state of Wisconsin at the time of Annie C. Slaymaker's death, and some did not. The court further found the execution of the deed to Magraw above mentioned, and the delivery to the trustees of the notes and mortgage therefor; also the conveyance by Magraw to the Slaymakers; that Magraw paid no consideration for the conveyance, since he assumed no liability for the Slaymakers' notes; that no part of the consideration expressed in the deed from Magraw to the Slaymakers was ever paid by them, or ever intended to be paid; and further found that these conveyances “were not made in good faith, and as a bona fide exercise of the power of sale contained in the said will of the said Emanuel C. Reigart, but were, and each and all of them were, made for the sole purpose of vesting the legal title to said lands in the said Samuel H. Slaymaker and Annie C. Slaymaker, and devesting the interest of the heirs at law of the said Emanuel C. Reigart.” It was also found that the sum of $18,000 was a fair and adequate consideration for the deeded premises; that ever since 1872 Annie C. Slaymaker, with her successive husbands, and since her death the appellant, Yeiser, have been in absolute and exclusive possession and control of said real estate, and have made extensive and valuable improvements on the premises. The court adjudged the conveyances to Magraw and from him to Annie C. Slaymaker and husband invalid and void, and that the premises now belong to the descendants of E. C. Reigart in defined proportions, excluding the appellant, Yeiser, from any interest therein; directed that Yeiser execute deed of all his interest, and that thereupon the $15,000 notes and mortgage be canceled and destroyed. Certain other portions of the judgment are not recited, for the reason that they are not attacked on this appeal. From the portions mentioned George O. Yeiser brings this appeal.Fethers, Jeffris & Mouat, for appella...