Melms v. Pfister

• Decision Date: 08 January 1884
• Citation: 59 Wis. 186,18 N.W. 255
• Parties: MELMS AND OTHERS v. PFISTER AND OTHERS.
• Court: Wisconsin Supreme Court

59 Wis. 186

18 N.W. 255

MELMS AND OTHERS

v.PFISTER AND OTHERS.

Supreme Court of Wisconsin.

Filed January 8, 1884.

Appeal from circuit court, Milwaukee county.

This is an action of ejectment commenced June 15, 1882, by the children and heirs at law of Charles T. Melms, who died February 19, 1869, in and a resident of Milwaukee county, seized and possessed of the land in question, (and a large amount of other property,) and which land the defendant Pfister claims under and by virtue of an executor's sale, and confirmation thereof, made in April, 1870, and an executor's deed thereof, made June 16, 1870. The other defendants claim as grantees and lessees under Pfister. By his will, made three days before his death, the deceased devised and bequeathed to his wife, her executors, administrators, heirs, and assigns, forever, as sole devisee and legatee, all his property, real, personal, and mixed; and he thereby appointed her guardian of all their seven minor children during their minority, and further appointed her and his brothers William and Leopold his executors, with the expressed desire that, if possible, his business should be continued by his wife, and his debts paid out of the same, for which purpose she would need the assistance and advice of his said brothers. At the time of his death their oldest child was 19, and the youngest four years of age. March 20, 1869, the will was proven and admitted to probate, and the executors and executrix were thereupon appointed and qualified, and gave the requisite bond. May 22, 1869, the property was appraised at $174,273, and the land in question at a little over $2,000. November 16, 1869, the widow made application to the county court, and by petition in writing, filed therein, reciting that she had become convinced that the estate was insolvent and would have to be sold for the payment of debts, waived all the provisions made for her in the will, and prayed to have the homestead, right of dower, and allowances under the statute made and set off to her, all of which was done by the county court, November 19, 1869. November 23, 1869, the said William and Leopold, as executors, petitioned the county court in writing, representing the condition of the estate, both real and personal; that the debts 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; and praying for license to sell the real estate, etc. A special guardian was appointed by the court for each and all the children. The license was granted, and the executors took the requisite oath. March 14, 1870, the executors and widow reported sales made, including the land in question, which were confirmed by the court, March 15, 1870. March 19, 1870, the court ordered the sales to be set aside, and resales to be made, and which were made accordingly. April 19, 1870, the executors and widow again reported sales made, including the land in question, to Guido Pfister, for $3,075, which was thereupon paid, and the resales confirmed. April 21, 1870, and June 16, 1870, the executor and executrix gave a deed to Pfister, in pursuance of the order of confirmation. September 29, 1870, the accounts of the executors were settled, and the moneys distributed by order of the court. September 13, 1871, the widow conveyed her dower right in the land in question to the defendant Pfister. On the trial a jury was waived, and the court found the facts for the defendants, and, as conclusions of law, directed the complaint to be dismissed, and from the judgment entered thereon this appeal is brought.Goodwin & Benedict, for appellants, Franz F. Melms and others.

John

W. Cary, Ordway & Hoyt,

and Finches, Lynde & Miller, for respondents, Guido Pfister and others.

CASSODAY, J.

1. Was the probate of the will a nullity because the notice of the hearing was published in the “Milwaukee Daily Sentinel,” instead of the “Milwaukee Sentinel,” as directed in the order? The notice was published in pursuance of section 18, c. 97, Rev. St. 1858, (section 3787, Rev. St.) The foreman was the proper person to make the affidavit, and it seems to have been in the requisite form. Sections 67, 70, c. 137, Rev. St. 1858, (sections 4173, 4174, Rev. St.;) Hill v. Hoover, 5 Wis. 354. The only objection made to it is that it was not published in the paper directed. The person making the affidavit testified on the trial, in effect, that he was, during 1869, foreman of the news-room of the Sentinel, in the city of Milwaukee; that there was no newspaper printed and circulated, or printed, in that city in that year by the name of the “Milwaukee Sentinel,” other than the “Milwaukee Daily Sentinel,” the “Milwaukee Tri-weekly Sentinel,” and the “Milwaukee Weekly Sentinel;” that the tri-weekly and weekly were mere adjuncts of the daily; that all were published by the same concern, from the same building, and at the same time, but to different subscribers; and that the words “daily,” “weekly,” and “tri-weekly” were in much smaller type,--not one-sixth part as large as the words “Milwaukee” and “Sentinel.” From this evidence there appear to have been three editions of the Milwaukee Sentinel, of which the daily was the principal edition, and the tri-weekly and weekly were mere adjuncts,--in fact, mere republications of the daily. The mere fact that each edition was designated by a word indicating the frequency of its publication, did not make it any the less an edition of the “Milwaukee Sentinel.” That was evidently its name in each edition. Another word was added merely by way of description. To hold that there was no newspaper published in Milwaukee in 1869 by the name of the “Milwaukee Sentinel,” or that an order directing a notice to be published in that paper was not substantially complied with by a publication in the “Milwaukee Daily Sentinel,” would be overlooking the substance of things, and giving an importance to a mere word in very small type, that would be altogether too finical for the ordinary business affairs of life. Certainly, titles to real estate should not be disturbed by the technical adherence to a mere word, regardless of its significance, or the connection in which it is used. We must therefore hold that the notice was published in the newspaper directed in the order, and hence that the probate of the will was not a nullity by reason of any defect in the publication of the notice of hearing. This also disposes of a similar objection to the publication of the notice of sale, and hence that need not be further considered.

2. It is urged that the probate of the will was a nullity by reason of the failure to appoint any special guardian for the seven minor heirs of the testator, either at the time of probate or before, and the case of Odell v. Rogers, 44 Wis. 136, is relied upon in support of the contention. On the first branch of that case Mr. Justice ORTON said, in effect, that “the publication of notice of the time and place of proving the will * * * was clearly insufficient,” but that such decree of probate, and the subsequent proceedings in the execution of the will, were “void only as to such persons in interest as did not appear or assent thereto, or as” had “not since supplied such want of appearance by acts clearly indicating assent thereto or a ratification thereof;” and upon the whole case the judgment of the circuit court affirming the probate of the will, and all proceedings, sales, and titles made under it, was affirmed by this court as to all the plaintiffs therein except Mrs. Hewitt, and as to her it was reversed. Such being the effect of the decision in that case, we cannot hold, upon the strength of it, that the probate of the will in the case before us was a nullity as to all parties, even upon the theory of counsel for the plaintiffs. Assuming that theory to be correct, still the widow having been named as an executrix in the will, and having, with the two executors named, accepted of letters of administration, and she and they having given the requisite bond, and qualified and entered upon such administration, they, and each of them, became bound by the probate, and the widow was thereby necessarily put to her election whether she would take under the will or under the statutes. Sections 17-19, c. 89, Rev. St. 1858, (sections 2170-2172, Rev. St.) So, upon the same assumption, the probate of the will was binding upon creditors. If the probate of the will was void for the reason assigned, as to any one, then it was only so as to such minor heirs. But before the end of the year the widow elected to take the provision made for her by law, instead of the provision made for her in the will, and by so doing 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 their 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. Had no will ever been executed, the title of the real estate would have vested in the heirs immediately upon the testator's death. The same would have been true had the will not embraced the real estate, but only covered the personal property. With the personal property, however, the effect was entirely different. That would not have descended to the heirs even had there been no will. On the contrary, had there been no will, the legal title and right to the possession of such personal property and the proceeds thereof would have vested in the administrator, and there remained until distributed under the orders of the...