Schneider v. Payne

• Decision Date: 12 June 1931
• Citation: 237 N.W. 103,205 Wis. 235
• Parties: SCHNEIDER ET AL. v. PAYNE ET AL.
• Court: Wisconsin Supreme Court

205 Wis. 235

237 N.W. 103

SCHNEIDER ET AL.

v.PAYNE ET AL.

Supreme Court of Wisconsin.

June 12, 1931.

Appeal from a judgment of the Circuit Court for Monroe County; R. S. Cowie, Circuit Judge.

Action by Laura M. Schneider and others against Grace L. Payne and others. From the judgment, defendants appeal.--[By Editorial Staff.]

Affirmed.

This is an action for partition, commenced July 29, 1930, in the circuit court for Monroe county. From a judgment entered October 11, 1930, in favor of the plaintiffs, defendants appeal.

Ophelia McWithey died intestate at the city of Sparta, Monroe county, Wis., on the 4th day of November, 1929. Petition for letters of administration was filed on November 7, 1929, in the county court of Monroe county, and in due course an administrator was appointed, who qualified, and thereafter administration proceedings have been pending in said court. The inventory lists real estate consisting of three residence properties located in the city of Sparta, having a total appraised value of $7,500, personal property consisting of cash, certificates of deposit, bonds, and other securities, and household furniture of the total appraised value of $4,497.98.

Ophelia McWithey was unmarried. Her sole next of kin and heirs at law are the parties to this action. Laura M. Schneider, Ethel Margaret Erickson, William H. Smith, Frank R. Smith, and Anna M. Brown, the plaintiffs, are children of Charles Smith, a deceased brother of intestate. The defendant Addie E. Smith is a daughter of Al. Smith, a deceased brother of intestate. The defendants Grace L. Payne and Jessie L. Burke are the children of John Smith, a deceased brother of the intestate.

Before the administration proceedings had been completed in the county court, the plaintiffs brought this partition action in the circuit court for Monroe county, asking judgment of partition and sale and distribution of the proceeds. It is admitted that the real estate described in the complaint is so situated as to be incapable of physical division among the parties.

By a judgment of partition, entered October 11, 1930, the circuit court held that each of the parties had an equal interest in the premises of an undivided one-eighth interest.

Masters & Hansen, of Sparta (H. M. Perry, of Black River Falls, of counsel), for appellants.

Baldwin & Bosshard, of La Crosse, and G. M. Sheldon, of Tomahawk, for respondents.

John W. Reynolds, Atty. Gen., F. C. Seibold, Asst. Atty. Gen., George D. Spohn, Inheritance Tax Counsel, of Madison, and C. W. Graves, of Viroqua, amici curiæ.

WICKHEM, J.

It is the contention of the appellants that under section 237.01, of the Wisconsin Statutes, the parties take per stirpes as follows: The five parties plaintiff dividing the one-third share of the parent whom they represent; the defendant Addie E. Smith, the one-third share of the parent she represents; the defendants Jessie L. Burke and Grace L. Payne, the one-third share of the parent they represent.

Subsections (3) and (4) of section 237.01 of the Statutes of 1929, read as follows:

“(3) If he shall leave no lawful issue nor widow nor father nor mother his estate shall descend in equal shares to his brothers and sisters and to the lineal descendants of any deceased brother or sister by right of representation.

(4) If the intestate shall leave no lawful issue, widow, father, mother, brother nor sister his estate shall descend to his next of kin in equal degree, except that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.”

It is the contention of the appellants that section 237.01 evidences the legislative intent to frame a complete written scheme of descent; that this scheme was to provide first for the nearest of kin, and then down the scale according to the degree of kinship. The appellants further contend that the order selected was: First, children and issue of deceased children; second, the widow or husband, and parents; third, brothers and sisters and their lineal descendants who are to take by right of representation; fourth, collateral kindred of more remote degree.

As applied to the facts presented in this action, it is the contention of the appellants that the words in subsection (3), “and to the lineal descendants of any deceased brother or sister by right of representation,” indicate that three situations are intended to be covered by subsection (3). (1) Where brothers or sisters survive; (2) where brothers or sisters and the issue of deceased brothers or sisters survive; and (3) where only the issue of deceased brothers or sisters survive. It is the contention that this language is clear and unambiguous, and specifically includes a situation where there are no survivors except the lineal descendants of brothers or sisters, and that it is the intent that they shall take by right of representation. It is the further contention that subsection (4) was intended to designate the share of persons not named in any of the preceding sections, and that, since it is clear that subsection (3) does refer to and include lineal descendants of brothers or sisters, such lineal descendants of brothers or sisters are to be excluded from the operation of subsection (4), and especially from the operation of the phrase “next of kin” contained in subsection (4). It is further contended that there is nothing in subsection (4) to indicate that “next of kin” are intended to take in equal shares; that the only reference to equality in this section is a reference to equality in degree of relationship.

We have concluded that the contentions of appellants are not sound. We think the proper construction to be given to this section is that adopted in Douglas v. Cameron, 47 Neb. 358, 66 N. W. 430, 433, in which the court said, in commenting upon a substantially similar statute: “These three clauses, therefore, form a scheme of inheritance among collaterals, embracing incidentally the case of the mother. They pursue an exclusive process, and must be read, in order to give the whole effect, as if, in addition to stating what kindred do not survive, they also stated that there were surviving those next in degree not named in the exclusive clauses.

Applied to the present section, it is our opinion that each subsection of section 237.01 refers to a particular fact situation. Subsection (1) supposes the survival of issue of the decedent or of his children; subsection (2) supposes the survival of a widow but no issue, also the survival of parents, but no issue or widow; subsection (3) supposes that the decedent has left surviving neither issue, nor widow, nor father, nor mother, but that he has left surviving at least a brother or sister; it also supposes that he may, in addition to these, have left surviving the lineal descendants of deceased brothers or sisters; subsection (4) deals with a situation where the decedent shall not have left issue, widow, father, mother, brother, or sister. We think it plain that the present situation is governed by subsection (4), and that subsection (3) applies only in the event decedent leaves surviving him a brother or sister. If he does leave such brother or sister and the lineal descendants of a deceased brother or sister, such lineal descendants take by right of representation. If he leaves no brother or sister surviving, and also leaves neither issue, widow, father, nor mother, then subsection (4) operates, and the estate of decedent descends to his next of kin, who in this case are his nieces and nephews. While there is no specific reference to their taking in equal shares, we think it is clear from the authorities and on principle that they do so take.

In Brown v. City of Baraboo, 90 Wis. 151, 62 N. W. 921, 30 L. R. A. 320, the court quoted with approval the following rule from Reeve, Descent, 105: “It is a general rule that those who take property as a class of persons described, where there is nothing in the law making the appropriation to distinguish their respective rights, take in equal shares.”

It is the contention of the appellants that, by the common law, collaterals of equal degree take equally, but their lineal descendants take by representation the share of their ancestor. It is the further contention of the appellants that it is clear from the section under examination, and particularly subsection (3), that it was the intention of the Legislature to adopt the common-law rule. To this we cannot agree. As is stated in Re Breg's Estate ...