Schimpf v. Rhodewald
| Decision Date | 05 June 1901 |
| Citation | 62 Neb. 105,86 N.W. 908 |
| Parties | SCHIMPF v. RHODEWALD ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A will consisting of a single sentence in the German language, of which the following is, as nearly as possible, a literal translation into English, omitting names: “I do will and bequeath to my wife all my property, she has entire control [“Sie habt zu verfuegen”] over the same after my death as long as she lives,”--devises a life estate only, and the reversion at the death of the testator vests in his heir or heirs at law.
2. A will by a tenant for life only, which purports to devise the fee of the lands which are the subject of the tenancy, does not operate as a bequest of an equitable lien upon the reversion in behalf of the testator because of his having paid off an incumbrance upon the premises existing at or prior to the creation of the life estate.
3. Ordinarily a life tenant who makes betterments upon the estate is not entitled to be reimbursed for the same by the reversioners or out of the reversion, but, in case he should be so entitled, his right will not pass by his will, purporting to devise the lands in fee; and the occupying claimant's act will not in such case be available to the devisee with respect to the betterments made before the termination of the life estate.
4. When, in an action for a partition of lands, the defendant in possession claims title to the premises adversely to the plaintiff, he will, by waiving a jury and participating without objection in the trial of all the issues in the cause before the court alone, also waive any objection he might otherwise have had on account of irregularity in the procedure in this respect.
Error to district court, Richardson county; Stull, Judge.
Action by Lina Rhodewald and others against Paul Schimpf. Judgment for plaintiffs. Defendant brings error. Affirmed.
J. R. Wilhite, J. H. Broady, and C. Gillespie, for plaintiff in error.
F. Martin, T. E. Martin, and Reavis & Reavis, for defendants in error.
In February, 1878, Christian Ertman Schimpf, a resident of Richardson county, in this state, died, leaving an estate consisting of 160 acres of land lying in that county, and certain live stock and farming utensils situate thereon and belonging thereto. He left surviving him his widow and eight children, his heirs at law, of whom the plaintiff in error herein, Paul Schimpf, then about 19 years of age, was the only son. The father was German born, and previous to his death he had executed a will written by himself and in the German language. Shortly afterwards the will was duly admitted to probate in the county of his residence. The widow, the son, and one of the daughters continued to reside upon the land after the death of the father,--the daughter until the time of her marriage; the widow until her death, in 1895; and the son until now. The widow and son, until the death of the former, and the latter since that event, have managed and controlled the property, personal and real, as their own, receiving to their own use the produce, rents, and profits, and increase of the same, and out of the same have expended considerable sums in buildings and betterments upon the lands, and, in 1878, in paying and causing to be satisfied of record a mortgage executed thereon by the father. In 1895 the widow died, after executing a will purporting to devise the fee in the land to her son. In the meantime Paul bought from some of his co-heirs, and obtained from them conveyances of, whatever title or interest they had in the premises. In 1897 this action was begun by the remaining heirs at law of the father to determine their shares in the land, and obtain partition thereof.
The principal contention in this action concerns the interpretation of the will of the father. A transcript of this instrument, in German, is set out in the answer of Paul, and is admitted by the reply to be correct. At the time it was admitted to probate the probate judge made and spread upon the records of his office a purported translation of it, as follows: The chief controversy in the briefs and argument of counsel is over the meaning of the word “verfuegen,” rendered in the above translation “entire control.” With that exception, it is not disputed that the English words in the copy are the equivalents of the corresponding German words in the original. But it is admitted that the translation by the probate judge was not an official act, and that the copy has no judicial importance. Judging from the transcript contained in the answer, the document was written without punctuation, except commas. The witnesses who attempt a translation of the entire instrument indulge in some freedom, both as to breaking it up into two distinct sentences, and as to the transposition of words. One Kaiser, a witness for the defense, inserts a period, as does the probate judge, after the word “property.” Jessen, another witness for the defense, renders the will thus: Keller, a witness for the plaintiff, renders the will in a single sentence, as follows: “I, Christian Ertman Schimpf, make my wife, Frederike Schimpf, all my property after my death as long as she lives has she thereof disposition.” Tanner, a witness for the defense, translates as follows: According to Burchard, a witness for the plaintiff, an almost literal translation is: “I bequeath to my wife, Frederike Schimpf, all my property for her use after my death during her lifetime she shall have control thereof” or “disposition thereof.” These witnesses are all shown to be more or less expert in the German language; and there are also in the record two dictionary definitions of the word “verfuegen,” in some of its forms, by which the words “order,” “arrange,” “ordain,” “decree,” “provide,” “dispose of,” “command,” “enact,” etc., are given as among its nearest English synonyms. It does not seem to me that much light can be derived from the dictionary, except that the variety of definitions make it evident that the meaning of the word in any given composition depends largely upon the subject-matter and the context; nor does it seem to me that there is any important difference between the various translations made by the witnesses. Neither does it seem to me that the provision of our statute that “every devise of land in any will hereafter made shall be construed to convey all of the estate of the devisor therein which he could lawfully devise unless it shall clearly appear by the will that the devisor intended to convey a less estate,” has any applicability to the instrument in question. In order to make the statute seem applicable, it is necessary to divide into two parts that which is organically one. It is contended that the part of the instrument preceding the words “that is my will” should be divided into two sentences or clauses, and that the first clause or sentence, “I do will and bequeath to my wife all my property,” is sufficient of itself to vest her with the entire estate in fee, and that the following words, constituting, as it is contended, the second clause or sentence, “she has entire control over same after my death as long as she lives,” are either insufficient to limit the preceding devise to a life estate, or else are repugnant thereto and void. Or at least, it is said, the two clauses are in such conflict and contradiction as to raise a doubt as to whether the testator did not intend to convey the fee, and, since it does not “clearly appear” to the contrary, the doubt must be resolved in favor of the widow and her devisee. But is this not creating a doubt by construction, where none is suggested by the language of the testator, in order to afford an opportunity for the use of the statutory resolvent? Suppose we omit the interpolated period in the probate judge's translation, and substitute the words “to have” for the words “she has.” The instrument would then read, “I do will and bequeath to my wife all my property to have entire control over the same after my death as long as she lives.” Would this change in phraseology make any difference in the meaning of the document? I think not. To my mind, the words “she has,” not only in this translation, but in all those given by the witnesses, as disclosed by the record, have the precise force of the English infinitive “to have.” “She has,” says the German; “She to have,” say we; and then it occurs to us that the pronoun is redundant and...
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