Newman v. Waterman

• Decision Date: 01 June 1885
• Citation: 23 N.W. 696,63 Wis. 612
• Parties: NEWMAN v. WATERMAN AND OTHERS, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

63 Wis. 612

23 N.W. 696

NEWMAN

v.WATERMAN AND OTHERS, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed June 1, 1885.

Appeal from circuit court, Clark county.

Ejectment. Solomon W. Newman died November 20, 1881, seized of the land in question. The plaintiff was his son by his first wife, and at the time of his father's death was his only surviving heir at law, and as such claims to be the owner in fee-simple absolute, and lawfully entitled to the immediate possession, of the land in question. The action was commenced and tried in the circuit court for Clark county, in which county the deceased resided at the time of his death, and in which county the land is situated. The complaint is in the usual form. The answer is a general denial. The mother of the defendants married the deceased about 1868. She was a widow at the time, and had seven children,--the youngest being the defendant Delia E. Waterman, who was then about seven years of age. Delia lived with her mother and the deceased until February, 1881, when her mother died, and then she continued to live with her step-father until he died. She claims title to the land as sole devisee in the last will and testament of the deceased.

On the trial the plaintiff offered “in evidence the will and probate, and all the papers connected with the probate of the will.” They were admitted. From the will and probate record, so admitted, it appears that the will was executed September 24, 1881. That the disposing portion of the will was in these words: “After the payment of all my just debts and funeral expenses, I give, devise, and bequeath to my step-daughter, Delia E. Waterman, all the rest, residue, and remainder of all my estate, both real and personal.” That the requisite proceedings being taken and had, and the requisite notices given, the will was admitted to probate in the county court for Clark county, February 7, 1882, by judgment or decree in the usual form, in which it was, among other things, “ordered that the said last will and testament, and the proofs and examinations taken in respect to the same, be recorded; and that the said last will and testament be admitted to probate, and the same be, and hereby is, established as a valid will.” That from that judgment of the probate court the plaintiff in this action appealed to the circuit court for Clark county, and the record of the county court in the matter, and the appeal papers, were filed with the clerk of said last-mentioned court, April 13, 1882. That thereupon such proceedings were had in said matter of probate in said circuit court, on said appeal, that March 14, 1883, at a general term of said circuit court, judgment was entered therein to the effect following, to-wit: “The appeal of Orville F. Newman from the decree of the county court of Clark county, dated February 7, 1882, admitting the will of said Solomon W. Newman to probate, and establishing the same as a valid will, being regularly on the calendar at said term, and having been reached in its order, and a trial having been had, and proofs taken before the court, offered by the proponent of the will, Delia E. Waterman, and no proofs on behalf of said appellant, Orville F. Newman, being offered, and the court being fully advised: now, on motion of Doolittle, Sturtevant, and James O'Neill, counsel for the proponent of said will, Delia E. Waterman, it is ordered, adjudged, and decreed that said judgment of said court, admitting said will to probate, be, and the same is hereby, affirmed, and said instrument is hereby allowed, and the probate thereof granted, as the last will and testament of Solomon W. Newman, deceased. Dated March 14, 1883.” Thereupon the trial of this action proceeded, and a great mass of testimony was taken on both sides, which, the plaintiff claims, tended to prove that the testator made the will under the mistaken belief that the plaintiff was at the time dead; and that, had it not been for such mistake, he would not have made any will, or, at most, not such a will as he did make; but which, the defendants claim, tended to prove that, although the testator had said that he supposed the plaintiff was dead, yet that he made his will just as he would had he positively known, at the time it was made, that he was, in fact, living. The court nonsuited the plaintiff as against George A. Waterman. The court refused to direct a verdict for the defendant Delia E. Waterman.

Under the charge of the court the jury answered two questions submitted to them, to the effect: (1) At the time when Solomon W. Newman made his will, he did not understand that his son Orville might be alive. (2) Understanding that his son Orville might be alive, he would not have made the will as he did make it. The jury also found a general verdict for the plaintiff. Thereupon the counsel for the defendant Delia E. Waterman moved the court to set aside the verdict and for a new trial, on the grounds that it was insufficient to base a judgment upon it; and against the evidence; and contrary to law; and for errors on the trial. Which motion being denied, the defendant Delia E. Waterman excepted. From the judgment entered upon the verdict the defendant Delia E. Waterman brings this appeal.

B. F. French and R. J. MacBride, for respondent.

James O'Neill and L. A. Doolittle, for appellant.

CASSODAY, J.

In ejectment, the party having the legal title, with the right of immediate possession, must prevail. As sole heir at law of his father, the plaintiff claims such title and right of possession. Both are denied. Had the father died intestate, the plaintiff's claim would have been manifest. Then he would have shown a right to the possession “as heir.” Section 3079, Rev. St. But the father did not die intestate. It is admitted that he left a will. By the will he gave, devised, and bequeathed all his estate, both real and personal, to his step-daughter, one of the defendants. The will was proved in the county court, and was by that court admitted to probate, established as a valid will, and ordered to be recorded. From that judgment of the probate court the plaintiff appealed to the circuit court. Upon the trial of that appeal the will was reproved in solemn form, and thereupon it was ordered, adjudged, and decreed by the circuit court that the judgment of the county court admitting the will to probate, be, and the same was thereby, affirmed, and the instrument was thereby allowed, and the probate thereof granted, as the last will and testament of said deceased.

The serious question here presented is as to the effect of that judgment upon this action. At common law the probate of a will was conclusive as to the personal property, but was no evidence as to the execution or validity of the will, so far as it affected real property. 1 Daniell, Ch. Pr. 877; Abb. Tr. Ev. 110. At common law, and as to real estate, the will itself, on being duly proved, in an action of ejectment, or other suit affecting the title to realty, becomes a muniment of title. Colton v. Ross, 2 Paige, Ch. 396; Bowen v. Idley, 6 Paige, Ch. 46; Brady v. McCosker, 1 N. Y. 214;Boylan ads. Meeker, 28 N. J. Law, 274, 303. But that has been changed by statute in England, as well as several of the states. 1 Daniell, Ch. Pr. 877; 1 Jarm. 50; Abb. Tr. Ev. p. 110, sub. 60. In this state no will is effectual to pass either real or personal estate unless it has been duly proved and allowed in the county court, as provided by the statutes, or on appeal in the circuit court, or in the supreme court, (except as to wills proved and allowed outside of the state,) and the probate of a will of real or personal estate, as provided in our statutes, is expressly made “conclusive as to its due execution.” Section 2294. When proved and allowed, a certificate thereof is to be indorsed thereon, or annexed, signed by the judge of the county court, and attested by the seal of such court. Such attested copy of every will devising lands or any interest therein, and of the probate thereof, is to be recorded in the office of the register of deeds. Section 2296. This indicates that the certified and attested copy of the will is to be treated as a conveyance.

Another section of the statutes declares “that every devise of land in any will shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall appear by the will that the devisor intended to convey a less estate.” Section 2278. Under this section it has, in effect, been held that where there is an absolute, unconditional devise, the devisee takes at once on the death of the testator. In re Pierce, 56 Wis. 560;S. C. 14 N. W. REP. 588;Schriver v. Meyer, 57 Amer. Dec. 634; Abbott v. Pratt, 16 Vt. 626. This may include lands acquired after making the will, (section 2279,) and the homestead, (section 2280.) Ferguson v. Mason, 60 Wis. 387; S. C. 19 N. W. REP. 420. In the case before us there is no intervening estate. The devise to the step-daughter is direct, absolute, and unconditioned. She therefore, as sole devisee, took the legal title to the real estate in question at once on the death of the testator. Thus her right and title to the land in question became complete at law before the commencement of this action. The probate of the will being made by statute “conclusive as to its due execution,” as well in respect to real estate as personal property, and the plaintiff, as heir, having appeared in the probate proceedings, thus giving to that court complete jurisdiction, it would seem that he can no longer have any standing in an action of ejectment to try the naked legal title, unless his right to do so was in some way saved by statute. The conclusiveness of judgments of probate has often been declared, and cannot reasonably be questioned. Archer v. Meadows, 33 Wis. 166; Freem. Judgm. §§ 319 a, 608.

Was the plaintiff's right to maintain this action against the devisee, notwithstanding the probate of the will, saved...