Niland v. Niland (In re Niland's Estate)

• Decision Date: 07 October 1913
• Citation: 143 N.W. 170,154 Wis. 514
• Parties: IN RE NILAND'S ESTATE. NILAND v. NILAND ET AL.
• Court: Wisconsin Supreme Court

154 Wis. 514

143 N.W. 170

IN RE NILAND'S ESTATE.NILAND

v.NILAND ET AL.

Supreme Court of Wisconsin.

Oct. 7, 1913.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Application by John Niland, Jr., as administrator of John Niland, Sr., deceased, and another for a final settlement, opposed by Mary Niland, widow. From an order of the circuit court allowing the administrator's final account, the widow appeals. Affirmed.E. Blewett, of Fond du Lac, for appellant.

Reilly, Fellenz & Reilly, of Fond du Lac, for respondents.

KERWIN, J.

This is an appeal from a judgment of the circuit court for Fond du Lac county.

John Niland died intestate in Fond du Lac county, Wis., on the 27th day of May, 1910, being at the time of his death a resident of said county, and leaving an estate consisting entirely of real estate, except a few articles of personal property and household furniture not sufficient to satisfy the widow's statutory allowance. The real estate was inventoried and appraised at $6,250. The deceased left him surviving his widow, the appellant, and two sons of a former marriage, his only heirs at law.

On the 27th day of June, 1910, the widow made application to the county court for an allowance, and said court made an order granting the application and making an allowance of $30 a month to be paid out of the personal estate or income from the real estate during the progress of the settlement of the estate. On the 4th day of May, 1912, the administrator gave notice of application for settlement of his final account. The account of the administrator showed that he had collected $960.50 as income from real estate. On the 20th day of May, 1912, the widow filed a petition showing that her allowance under the order of the county court to the 27th day of April, 1912, was $720, of which amount she had received $420.50, leaving a balance of $299.50, and asking that said balance be paid her. The county court denied her application and entered an order allowing the administrator's final account. The widow appealed to the circuit court, and that court held that the disbursements shown to have been made by the administrator for taxes, insurances, and repairs on the real estate were properly paid out of the income from the real estate and that the only amount to which the widow was entitled was the balance of such income after deducting such disbursements to the time of final settlement of the estate.

[1] The question involved here is whether the administrator was warranted in charging taxes, insurance, and repairs on the real estate against the allowance. In other words, does the statute which gives the widow “income” out of the real estate of the deceased mean net or gross income? On the part of the appellant it is insisted that the statute means gross income, while on the part of the respondent it is insisted, as the court below held, that it means net income. The court below deducted the amount of taxes, insurance, and repairs paid by the administrator from $299.50, balance of gross income, and awarded the balance, $101.47, as balance due the widow on her allowance.

The statute under consideration is subdivision 2, § 3935, which provides: “The widow and minor children, or either, constituting the family of the deceased testator, or intestate, shall have such reasonable allowance out of the personal estate or the income of the real estate of the deceased as the county court shall judge necessary for their maintenance during the progress of the settlement of the estate, but never for a longer period than until their shares shall be assigned to them. * * *”

The question raised by the assignment of error is whether the court erred in its decision finding that the word “income” in the statute means net income. There is some apparent confusion in the authorities respecting the meaning of the word “income,” but we think that the word as used in the statute under consideration was intended by the Legislature to mean net income. True, the word “income” has been construed to mean gross income or revenue derived from specific property where, from the language of the statute or contract, gross income appeared to have been intended. Seligman in his work on Income Tax says that “income” is to be distinguished from mere receipts or gross revenue; that it is more than that which simply comes in from any...