Melms v. Pabst Brewing Co.

• Decision Date: 18 February 1896
• Citation: 66 N.W. 244,93 Wis. 140
• Parties: MELMS ET AL. v. PABST BREWING CO.
• Court: Wisconsin Supreme Court

93 Wis. 140

66 N.W. 244

MELMS ET AL.

v.PABST BREWING CO.

Supreme Court of Wisconsin.

Feb. 18, 1896.

Appeal from circuit court, Milwaukee county; Frank M. Fish, Judge.

Action by Franz Melms and others against the Pabst Brewing Company to remove a cloud from the title of certain real estate. From a judgment rendered, defendant appeals. Affirmed.

This is an action to remove a cloud from the title of certain realty in the city of Milwaukee. The facts are without dispute, and are substantially as follows: Charles T. Melms died February 19, 1869, leaving a widow and seven children, of whom the eldest was 20 and the youngest 3 years of age at that time. He owned a tract of land in the city of Milwaukee, of which the northern portion was occupied by a large brewery. On the southern portion, facing the south, he had constructed a large dwelling house, which was his homestead. The brewery and homestead were heavily mortgaged at the time of his death, and his unsecured debts amounted to about $100,000 over and above the mortgages. By his will he gave all his property to his wife, and appointed her guardian of their minor children, and also appointed her and his brothers William and Leopold his executors, with the express desire that, if possible, his business should be continued by his wife, and his debts paid out of the same. The will was proven in March, and the executors and executrix were thereupon appointed, and gave the required bond. The widow sought to carry on the business for a time, but in a few months apparently became convinced that she could not do so. She then caused to be surveyed a piece of land 90 feet square, in the center of which the dwelling house or homestead stood, and connected this with the street to the south by a strip 45 feet wide and 60 feet long, making in all an exact quarter of an acre. This is the piece of land involved in this action, and from which the plaintiffs asked to have certain clouds on the title removed. Mrs. Melms then, on the 15th of November, 1869, by petition in writing, made application to the county court of Milwaukee county, stating that she had become convinced that the estate had become insolvent, and would have to be sold for the payment of debts, waiving the provision made for her in the will of her husband, and praying that the homestead, described above, be set apart to her, and that her dower be assigned, and the statutory allowances made to her, all of which was done by order of the county court, dated November 19, 1869. November 23, 1869, William and Leopold, as executors, made petition to the county court for license to sell the real estate, representing that the debts of the estate amounted to $104,000, besides such as were liens on the real estate; that the personal property was only of the value of $32,000. License was granted under this petition, and thereafter the sale was had of the whole brewery and premises, excepting the homestead above described, and the same was bid off in the name of Jacob Frey, subject to the incumbrances thereon, for the sum of $379.50. This sale was confirmed by the court May 25, 1870, and a deed of the premises was made by the executors on the same day. It appears as a matter of fact that this sale to Frey was a mere sham, and that Mrs. Melms was the person for whose interest the purchase was made, and Frey took the title merely as a cover. Mrs. Melms immediately made effort to sell both the brewery and the homestead, and on the 1st of November, 1870, she and Frey made a written agreement with Friedrich Pabst and Emil Schandein, whereby they agreed to sell and convey to them by warranty deed the entire premises, including the brewery and homestead, for the sum of $95,000. This consideration was to be paid as follows: $30,000 by paying and discharging an existing mortgage on the property to one Baker; $40,000 by the execution and delivery of a mortgage of that amount on the property by Pabst and Schandein; and the remaining $25,000 by paying and extinguishing two certificates of sheriff's foreclosure sale of that amount upon the whole property, upon which certificates deeds would be due in June or July of the following year. This agreement was carried out by Pabst and Schandein in all respects according to the contract, except that, instead of redeeming the $15,000 certificate of sheriff's foreclosure sale, they took an assignment of it from the holder, and in July, 1871, received a sheriff's deed covering the whole brewery and homestead property. Mrs. Melms and Frey had previously given Pabst and Schandein a warranty deed covering the entire property. Pabst and Schandein had conveyed the entire property to the Pabst Brewing Company prior to the commencement of this action, of which company Pabst and Schandein were officers and principal stockholders. It appears that the Pabst Brewing Company claims to own the homestead property in fee under the deed from Mrs. Melms and the sheriff's deed on foreclosure. The prayer of the complaint is that both the will of said Charles T. Melms, in question, with the said deed from Frey and Mrs. Melms, and the said sheriff's deed to Pabst and Schandein, so far as the homestead property is concerned, be adjudged null and void, and that it be decreed that the defendant holds said homestead premises only as tenant for life of Marie Melms, subject to the estate in fee in remainder of the plaintiffs therein. The circuit court granted the relief substantially as prayed for in the plaintiffs' complaint, and from that judgment defendant appealed.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

Bloodgood, Bloodgood & Kemper, for respondents.

WINSLOW, J. (after stating the facts).

But two questions were seriously argued by the appellant: (1) Whether Mrs. Melms lost the fee to the homestead by the filing of her petition of November 15, 1869; (2) whether the defendant can assert title as against the heirs under the sheriff's deed on foreclosure.

1. It is argued that in some way Mrs. Melms' election to take under the law, and not under the will, did not affect the devise of the homestead, but that she retained title to the homestead under the will, while taking dower and personal property under the law; thus taking partly under the will and partly under the law. Sections 2171 and 2172, Rev. St., seem very clear on this subject. Section 2171 provides that, when lands are devised to a woman or other provision made for her in the will of her husband, she shall elect whether she will take under the will or under the law (not whether she will take partly under the will and partly under the law), but that she shall not have both unless such plainly appears by the will to have been the intent of the testator. Section 2172 provides for the filing of the notice of such election in the county court within one year from the husband's death, and then provides that “upon filing such notice she shall be entitled to the same dower in his lands and the same right to the homestead as if he had died intestate leaving lawful issue and the same share of his personal property as if he had died intestate.” In treating of this very will and election in the case of Melms v. Pfister, 59 Wis. 186, 18 N. W. 255, it was said by the present chief justice that, by the filing of the election, “the will immediately became inoperative as to the real estate, the title of which at once upon such election, if not upon the testator's death, became vested in his heirs, subject to the mother's right of dower and the payment of the testator's debts. From that time forth, at least, the real estate must be regarded the same as though no will had ever been executed.” Although the question as to the title to the homestead was not involved in that case, we are entirely satisfied that the same principles are applicable, and that from the time of the election the homestead also “must be regarded as though no will had ever been executed.”

The claim is made that the will shows that it was the intent of the testator that his widow should take both under the will and at law, because the will gives her the entire property. It is true the will gives her the entire property, but, as to all the real estate except the homestead, she must take it (if she takes it under the will) subject to the payment of unsecured debts of the deceased, which amounted to about $100,000. If she took under the will, she could claim no dower in it. Now, the will shows on its face that it was the intention of the testator that this entire property should be kept together. He gives her all his property, and desires that, if possible, his business should be continued by her, and his debts...