Schumacher v. Draeger

• Decision Date: 26 January 1909
• Citation: 137 Wis. 618,119 N.W. 305
• Parties: SCHUMACHER v. DRAEGER ET AL.
• Court: Wisconsin Supreme Court

137 Wis. 618

119 N.W. 305

SCHUMACHER

v.DRAEGER ET AL.

Supreme Court of Wisconsin.

Jan. 26, 1909.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by Augusta Schumacher against Henrietta Draeger and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Among other references upon the part of the appellant were the following: Sections 2302, 2304, St. 1898; Krouskop v. Krouskop, 95 Wis. 296, 70 N. W. 475; Fairchild v. Rasdall, 9 Wis. 379;Duncan v. Duncan, 111 Wis. 75, 86 N. W. 562;Bird v. Morrison, 12 Wis. 138;Smith v. Putnam, 107 Wis. 155, 82 N. W. 1077, 83 N. W. 288;Scheuer v. Cochem, 126 Wis. 209, 105 N. W. 573;Kaufer v. Stumpf, 129 Wis. 476, 109 N. W. 561; section 2180, St. 1898; Fanning v. Murphy, 126 Wis. 538, 105 N. W. 1056, 4 L. R. A. (N. S.) 666, 110 Am. St. Rep. 946.

Among other references upon the part of the respondent were the following: Begole v. Hazzard, 81 Wis. 274, 51 N. W. 325;Whiting v. Gould, 2 Wis. 552; sections 2071, 2073, 2075, St. 1898; Tyson v. Tyson, 96 Wis. 59.71 N. W. 94;Loring v. Palmer, 118 U. S. 321, 6 Sup. Ct. 1073, 30 L. Ed. 211;Tyson v. Richardson, 103 Wis. 397, 79 N. W. 439;Schreyer v. Scott, 134 U. S. 405, 10 Sup. Ct. 579, 33 L. Ed. 955;Hart v. Hart, 117 Wis. 639, 94 N. W. 890.W. A. Hayes and Charles G. Woolcock, for appellant.

Houghton & Neelen and C. H. Van Alstine, for respondents.

TIMLIN, J.

Louisa Meister died intestate at Milwaukee, Wis., November 4, 1905, and left her surviving her husband, August Meister, and the plaintiff, her daughter by a former marriage. The plaintiff had one child, who is the infant defendant Eugene Oettinger. On the day of her death Louisa Meister conveyed her property, consisting of a house and lot, by absolute deed to the defendant Henrietta Draeger. The deed was afterwards recorded. The plaintiff, as heir at law, brought this action to set aside the deed, averring lack of capacity and undue influence and entire absence of consideration for the conveyance. The defendant Henrietta Draeger answered, admitting the execution of the deed and some other matters, but interposing a general denial against the averment of incapacity and undue influence, and then pleaded affirmatively as follows: “And said defendant alleges that several weeks prior to the death of the said Louisa Meister, she informed the defendant that prior to her death she should make and execute a deed of her real estate and homestead to this defendant, and that she wished this defendant to accept such deed and hold such real estate in trust for her during the life of August Meister, one of the defendants in this action, and after the decease of the said August Meister to make a deed of such real estate to her grandson, Eugene Oettinger, the son of said plaintiff, and that she wished this defendant to allow her husband, August Meister, one of the defendants in this action, after the decease of said Louisa Meister, to have the use and occupation of said premises during his life, and that upon his decease this defendant should then convey said real estate to the said Eugene Oettinger, the son of the plaintiff in this action; that this defendant then and there advised said Louisa Meister that it would be better for her to make a will, but that, if she made the deed to her in the way she had suggested, she would hold such property in trust for the use and benefit of August Meister, her husband, during his life, and after his death would convey the same to her said grandson, Eugene Oettinger. And this defendant now comes into court and admits of record that she holds the title of such real estate subject to such agreement which she here offers, and is willing to carry out, either at the time of the decease of said August Meister, or convey such property at the present time to the said Eugene Oettinger, son of said plaintiff, and grandson of said Louisa Meister, deceased, with a life lease to the said defendant August Meister.” The defendant August Meister answered, and the infant Eugene Oettinger, by his guardian ad litem, submitted his rights and interests in the matters in question to the care and protection of the court. Evidence showed that the deceased was about 70 years of age, illiterate, and in ill health, that Henrietta Draeger was a widow about 57 years of age, crippled with rheumatism, generally confined to her house by this sickness, to a considerable degree incapable mentally of understanding or transacting business or testifying intelligently, but that she was a friend of Louisa Meister, and had, prior to the execution of the deed, promised Louisa Meister substantially as averred in the answer above quoted. It was also made to appear that immediately after the execution of the deed Louisa Meister directed her husband to take it over and give it to Mrs. Draeger, but he delayed doing so until after the death of Louisa Meister. The plaintiff, Augusta Schumacher, married her present husband on or about November 23, 1905. These facts were found by the circuit court, and also that the plaintiff was addicted to strong drink, by reason of which there existed, at the time of the death of Louisa Meister, an estrangment between her and the plaintiff, and that the deed was made as indicated in the answer of Henrietta Draeger, and that there was no fraud or undue influence practiced upon said Louisa Meister. And as conclusions of law, that certain defendants were entitled to judgment dismissing the complaint as to them, and that the defendants Henrietta Draeger, August Meister, and Eugene Oettinger by C. H. Van Alstine, his guardian ad litem, were entitled to judgment dismissing the complaint without costs and to a decree declaring that the deed of conveyance of Louisa Meister above mentioned was a trust deed, and that the said Henrietta Draeger is the trustee under such deed, and holds the title of the real estate in question as such trustee for the use and benefit of August Meister during his life, and after his death for the use and benefit of Eugene Oettinger and his heirs forever, and that within 30 days of the date of the entry of such decree the said Draeger should make and execute a good and sufficient deed of conveyance to the said August Meister of a life estate in said real estate, with remainder over to Eugene Oettinger and to his heirs forever, and that in case of the failure, for any cause whatsoever, of the said Henrietta Draeger to execute such deed within said 30 days, the title of the said real estate be divested from Henrietta Draeger and vested in August Meister for life, with remainder over to Eugene Oettinger and his heirs forever. The real estate in question was properly described in said decree.

Error is assigned: (1) In denying plaintiff's motion for judgment on the pleadings; (2) in the admission of incompetent testimony; (3) in denying plaintiff's motion to strike out incompetent testimony; (4) in denyingplaintiff's motion to amend the complaint to conform to the proof, by alleging that there was no delivery of the deed in question; and (5) in the findings of fact, conclusions of law, and judgment thereon. This being a suit in equity error cannot be assigned upon the admission of, or the...