Scott v. Ross (In re Ross' Estate)

• Court: Wisconsin Supreme Court
• Writing for the Court: JONES
• Citation: Scott v. Ross (In re Ross' Estate), 181 Wis. 125, 194 N.W. 151 (Wis. 1923)
• Decision Date: 05 June 1923
• Parties: IN RE ROSS' ESTATE. SCOTT ET AL. v. ROSS.

181 Wis. 125

194 N.W. 151

IN RE ROSS' ESTATE.SCOTT ET AL.

v.ROSS.

Supreme Court of Wisconsin.

June 5, 1923.

Appeal from Green County Court; John L. Sherron, Judge.

In the matter of the estate of David B. Ross, deceased. Action by Linda C. Scott and others against Nettie Ross. Judgment for defendant, and plaintiffs appeal. Affirmed.

Petition by the bondsman of a deceased trustee for a settlement of the trustee's account and for assignment of the residue of the estate to the persons entitled thereto. The report of the bondsman shows that Sarah A. Ross, the trustee, died on February 24, 1922, and that at the time of her death she had in her possession as trustee $1,622, derived from the sale of real estate of the David B. Ross estate.

David B. Ross died on September 27, 1897. The terms of his will, so far as material to the case, are as follows:

“I give and bequeath unto my beloved wife, Sarah A. Ross, my homestead known and described as follows: * * * I also give and bequeath unto my beloved wife Sarah A. Ross all my personal property and effects including money, notes, accounts or any other property so called personal property, * * * to have and to hold and use for her own benefit, for the full term of her life.

After the decease of my beloved wife, Sarah A. Ross, all the property real and personal after all just debts are satisfied shall be equally divided between my children, Linda C. Ross, now Scott, Percy H. Ross, Irvie D. Ross, Myrtie E. Ross, now Root, and Luta M. Ross, if they be living, if not to go to their children if they have any living, but if any should have no child or children living, to be equally divided between the remaining children of Mr. and Mrs. David B. Ross or their children.”

In December, 1898, Sarah A. Ross, executrix, filed a petition in which she set out that she had administered the estate of the deceased and had paid all debts and expenses; that all of said estate was willed to the executrix as his widow surviving, in trust for her sole use and benefit; that she presented her accounts for adjustment; and prayed judgment adjusting and allowing the same and that the residue of said estate be by the judgment or order of the court assigned to the persons who are by law entitled to the same, and adjudging the estate to be duly administered and settled. On December 12, 1898, the court ordered that the petition be heard on February 7, 1899, and ordered further that notice to all persons interested be given by publication in the Journal Gazette. The published notice, omitting formal parts, stated:

“The following matter will be heard and considered: In the adjustment and settlement of the testatrix's final account.”

On February 14, 1899, the court filed a final judgment, which recited that Sarah A. Ross, executrix of the estate of David B. Ross, had filed her final account as such executrix, and a petition praying for a judgment allowing her accounts and assigning the residue of said estate to the persons entitled thereto; than an order had been made by the court that said accounts be adjusted, and the matters of said petition be decided; that notice thereof be given by publication; that it appeared that due notice had been given by publication as required by law; and that all claims had been duly allowed or disallowed. The judgment proceeded as follows:

“It is further found and determined that in and by the last will and testament of said deceased, David B. Ross, the following described real estate was devised to the following named children, to wit: Linda C. Ross, now Scott, Percy H. Ross, Irvie D. Ross, Myrtie E. Ross, now Root, and Luta M. Ross, which real estate is subject to the life use of Sarah A. Ross, his widow, and that each of the heirs at law have an undivided one-fifth interest therein, which real estate is described as follows. * * *” Subsequent to this final order, Irvie D. Ross died, leaving him surviving his widow and minor son, Duane Ross. On March 5, 1907, the four daughters conveyed their interest in the real estate in question to their mother, the executrix. The court appointed a guardian for Duane Ross, and on March 12, 1907, the guardian, by order of the court, conveyed the interest of Duane Ross to Fred Albertson for the sum of $1,622.07. On the same date, Sarah A. Ross conveyed by deed the four-fifths interest which she had acquired from the daughters to Fred Albertson. There was a recital in the deed that:

“The said first party hereby also conveys her life interest in the undivided one-fifth interest in the above 100 acres belonging to Duane Ross, a minor.”

Sarah A. Ross was appointed guardian of Duane Ross, and she took possession of the $1,622.07 above mentioned. On May 22, 1921, Duane Ross died, leaving surviving him his mother. On February 14, 1922, Sarah A. Ross died. Upon the petition of O. A. Scott, bondsman of the trustee, for a settlement of the trustee's account, the surviving daughters of David B. Ross filed a petition setting out the foregoing, and prayed:

“The order of this court that the said will be construed to the end and effect that, at the death of Sarah A. Ross, the only persons to survive her coming within the language and terms of the will were your petitioners, and that an order be entered directing said $1,622.01 to be distributed between your petitioners, share and share alike, or for such other or further order as may be just.”

Nettie Ross, mother of Duane Ross, filed a petition setting out the facts as above stated, and alleged that by order of the county court on February 14, 1899, it was determined that Irvie Ross (her then husband) was entitled to a one-fifth interest in the lands of David B. Ross, subject to a life estate of Sarah Ross; that Irvie Ross died, and his son, Duane Ross, obtained title to the one-fifth interest by the law of descent; that a trust estate was created by the court out of the proceeds of the sale of this one-fifth interest; that Duane Ross died, and left surviving him his mother, as his sole heir at law; and that Sarah A. Ross died in February, 1922, thereby terminating the trust. Judgment was asked assigning the trust fund to the petitioner Nettie Ross.

As conclusions of law, the court found:

“That although the will of the testator seems to contemplate a contingent instead of a vested interest during the lifetime of the surviving widow, liable to be defeated by death before the death of the testator's widow, the court, at the time of the rendition of the final judgment, had jurisdiction of the parties and of the subject-matter, and the determination and assignment of the estate as a vested interest to the children who were then living, is binding and conclusive on this court until reversed or set aside in the manner provided by law.

That to now refuse to give full force and effect to the final judgment in this estate would prejudice the rights and interests of innocent subsequent purchasers.

That by reason of the long delay after notice of the terms of said judgment and the conveyance of a vested interest in fee by said four daughters of four-fifths part of the premises by deed in 1907 and the subsequent conveyances of said premises to innocent purchasers, they are now estopped to question the validity of said judgment.

That Nettie Ross, the mother and sole heir at law of Duane Ross, deceased, is entitled to have the trust fund of $1,622 and the interest thereon from March 1, 1922, assigned either to her or to the estate of Duane Ross, deceased.”

Judgment was entered accordingly.

J. D. Dunwiddie, of Monroe (Gilbert, Ela & Heilman, of counsel, of Madison), for appellants.

J. M. Becker, of Monroe, for respondent.

JONES, J. (after stating the facts as above).

It is argued by counsel for appellants, and it seems to be conceded by counsel for respondent, that the judgment of the county court, rendered February 14, 1899, was erroneous.

[1] The judgment assigned the remainder as being vested in the children then living, instead of being contingent during the life of the surviving widow, liable to be defeated by death prior to her death. In this respect the case is ruled by Cashman v. Ross, 155 Wis. 558, where it was said at page 560 (145 N. W. 199, at page 200):

“The devise in the instant case meets the conditions of this language. It is not a present devise to the children. It is a direction that after the termination of the life estate the property shall be divided between them, and nothing appears in the will to indicate that any vesting of interest shall precede the right to the enjoyment of the estate. When property under a will is to be divided at a specified time in the future among a class, only those thereof who are alive at the time of division can take under the will in the absence of provisions to the contrary [citing cases]. We have no provisions in this will disposing of the share of a remainderman who dies before the life tenant. The devise, therefore, to Margaret Ross, lapsed upon her death prior to that of her mother, and her share went to the other children of the testator who survived, and not to her husband.”

[2] It is also well settled that title to real estate passes by the will when duly probated, and not by decree of the court. Will of Hess, 97 Wis. 244, 72 N. W. 638;Jones v. Roberts, 84 Wis. 465, 54 N. W. 917. The court had jurisdiction to entertain the proceedings for the administration of the estate and to admit the will to probate. The petitionfor settlement of the account of the executrix and assignment of the residue was in due form, as well as the order for the hearing of the petition; but the published notice made no mention of a construction of the will or the assignment of the residue. This defective notice is vigorously attacked by counsel for appellants, and it is argued by them that the judgment so far as it purported to assign interests in real estate was absolutely void as to them,...