Meister v. Francisco

• Decision Date: 16 January 1940
• Citation: 289 N.W. 643,233 Wis. 319
• Parties: MEISTER et al. v. FRANCISCO et al.
• Court: Wisconsin Supreme Court

233 Wis. 319

289 N.W. 643

MEISTER et al.

v.FRANCISCO et al.

Supreme Court of Wisconsin.

Jan. 16, 1940.

Appeal from a judgment of the County Court of Walworth County; Roscoe R. Luce, Judge.

Reversed.

In the action, commenced January 13, 1939, by the plaintiffs, Frank Meister, Herman Meister and Charles Meister, sons of Gustav Meister, deceased, twelve grandchildren of said deceased, and H. A. Burdick, trustee, against the defendant, Ida M. Francisco, it was sought to vacate and set aside a certain quitclaim deed which Lena Meister, widow of said deceased, had delivered in her lifetime to the defendant, and which the latter claimed conveyed a fee to lot No. 4 of Rogers second subdivision to the city of Lake Geneva. The defendant is a sister of the three plaintiffs first named and an aunt of all the other plaintiffs, except the trustee. In the complaint it was in substance asserted that at the time the deed was delivered to the defendant, the sole interest of Lena Meister in said lot was that of a life tenant; that she was without power to convey the fee to said lot in consideration of her support and that the deed was without consideration. It was also alleged that the execution and delivery of the deed was obtained by undue influence. The trial was to the court. Charles Meister, one of the original plaintiffs, declined to continue as a plaintiff and was therefore made a defendant. Ida M. Francisco, however, will be referred to as the defendant. The claim that the deed was obtained by undue influence was abandoned. The trial court made its findings of fact and conclusions of law, which will be referred to in the opinion, and ordered that judgment be entered in favor of the defendant. From a judgment dismissing the complaint and for costs, entered April 26, 1939, the plaintiffs appealed. The material facts will be stated in the opinion.Sheldon & Freytag, of Elkhorn, for appellants.

Charles S. French and Sturges P. Taggart, both of Lake Geneva, for respondents.

NELSON, Justice.

So many of the material facts as are necessary to an understanding of this controversy will be summarized. Gustav Meister died on December 17, 1930, leaving a last will and testament, dated November 25, 1921, which was duly admitted to probate. He left surviving him, Lena Meister, widow, three sons, two daughters and five grandchildren, sons and daughters of William Meister, a deceased son. The real estate which he left was appraised at $23,600 and the personal property at $4,674.42. His debts amounted to only $200. The real estate consisted of a farm and the lot in the city of Lake Geneva. The farm apparently was well stocked.

The will of Gustav Meister first directed the payment of his debts, funeral and administration expenses, and then provided:

“Second I give, devise and bequeath unto my wife Lena, all of the estate of which I may die seized or possessed, both real and personal, to have, use and enjoy the same for and during the term of her natural life, will full power to sell and convey any and all of the real estate, and upon such sale to execute all necessary deeds of conveyance, and to deal with the proceeds as if it were personal property, or to convert the same into other real estate, in her discretion, without the authority of any court; and from and immediately after the death of my said wife, it is my will that all of the principal of said estate as it may exist at that time, vest in H. A. Burdick of Lake Geneva, Wisconsin, in trust, however, to convert the real estate, if any, into personal property, within a reasonable time, so that the same will not be sacrificed, and when all of said property shall be converted into cash to divide the same equally among my children living at the time of the death of my said wife, in equal shares as follows: one sixth thereof to my son Herman Meister, or if he be not then living, such share to go in equal shares to his issue; one sixth thereof to my daughter Annie Bartleson, or if she be not then living, such shares to go to her issue in equal shares; one sixth thereof to my son Frank Meister, or if he be not then living, such share to go in equal shares to his issue; one sixth thereof in equal shares to the then living issue of my deceased son William Meister; one sixth thereof to my son Charles Meister, or if he be not then living, such share to go to his issue in equal shares; one sixth thereof to my daughter Ida Morgan, or if she be not then living, such share to go to her issue in equal shares.

“Item It is my will that in making the final distribution of my said estate, the sum of four hundred dollars advanced by me to pay funeral and burial expenses of my late son William, shall be by my said trustee equalized by the payment to each of the other children, or issue as the case may be, the sum of four hundred dollars; and further, should any of my said children die leaving no issue living at the time of the decease of my said wife, it is my will that the share which would have been distributed to that child or his or her issue be considered as a part of the general fund and divided equally among the living children, the child or children of any deceased child to take such parent's share, so that the whole of said estate shall be divided among my children or their issue, and not under any circumstance to the collateral heirs of said child or to the collateral heirs of the issue of any child.”

Shortly after the death of Gustav Meister, Lena Meister, the widow, went to Lake Geneva to reside with her daughter, the defendantIda M. Francisco. She continued to reside there until she died on December 19, 1938. On August 28, 1938, about four months before her death, she executed and delivered to the defendant, a quitclaim deed covering lot 4 in Rogers second subdivision to the city of Lake Geneva. The consideration expressed in the deed was “One ($1) Dollar and other valuable consideration” and also the following: “It is hereby agreed and understood that as a part of the consideration of this deed of conveyance, the said Ida Meister Francisco is to take care of, support and maintain and do whatever else may be necessary to make the grantor reasonably comfortable during her lifetime, and the said grantee on her part agrees to and with the said grantor that during her lifetime she will care for and support said grantor and see that she receives proper care.”

A $1 United States internal revenue documentary stamp was attached to the deed. The premises deeded, according to the testimony of one witness, were worth between $4,000 and $4,500 and had been and then were leased for $25 per month. On December 29, 1931, Lena Meister, as executrix, petitioned the county court and represented that the will of Gustav Meister had been duly admitted to probate; that one year had elapsed since the death of the testator; that the second paragraph of the will provided (hereinbefore recited); that she was desirous of ascertaining whether there is or will become due any inheritance tax upon the transfers under the terms of the will and prayed that the court construe the will, not only in its entirety but also in particular as to the following:

(1) To what extent, during her lifetime, may the widow Lena Meister, encroach upon the corpus of said estate. (2) Upon the death of the testator, Gustav Meister, did any of his issue acquire any vested interest in any portion of the estate and, if so, can such interest be now ascertained? Thereafter, on September 13, 1932, pursuant to notice, a hearing was had on the petition mentioned and also on her final account as executrix. The court approved of her account and entered a judgment assigning the estate pursuant to the terms of the will. The judgment, among other things, provided “that the transfer of said property by said will as to Lena Meister, the widow, is exempt from tax and the tax on any and all transfers to the other persons named in said will cannot be determined until the death of said widow, as all their interests are now contingent.” The judgment provided in substance that all of the real and personal property be vested in accordance with the terms of the will, which provisions were substantially recited in full.

The trial court...