Shove v. Shove

Citation34 N.W. 392,69 Wis. 425
PartiesSHOVE v. SHOVE, IMPLEADED, ETC.
Decision Date11 October 1887
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Milwaukee circuit court.

The plaintiff was the brother of Dan A. Shove, and the defendant was his wife. March 25, 1869, Dan A. Shove procured from the Northwestern Mutual Life Insurance Company a policy of insurance upon his life for $2,000, purporting to be “for the sole use and benefit of Theodore C. Shove,” aforesaid. May 25, 1885, Dan A. Shove died in Dakota, where he resided at the time, leaving a last will and testament bearing date and executed September 4, 1880, whereby he gave and bequeathed said policy of insurance to the defendant; and therein stating, in effect, that said policy was made payable to the plaintiff, as collateral security for the payment of three notes held by him amounting to $903.92, and such other items of indebtedness, if any, as might satisfactorily appear to be due and existing between them; and, further, that said notes and indebtedness had all been paid and discharged. In the will said Martha was named as executrix. June 18, 1885, the will was admitted to probate at Huron, Dakota, and it was therein ordered that the said Martha be appointed executrix upon taking the requisite oath, and giving the requisite bond. Thereupon, and on June 24, 1885, the plaintiff appealed from said probate, to the district court, and gave the requisite bond staying further proceedings. Upon this action being brought against the insurance company and Martha, the latter answered, by way of equitable counter-claim, to the effect that the policy was so made payable to the plaintiff for the sole purpose of securing an indebtedness to him from her husband which the latter had fully paid. The plaintiff, replying to the counter-claim, admitted, in effect, that the policy had been made payable to him merely as collateral security of the three notes mentioned, and other indebtedness; and that one of the notes had been paid, but insisted that there was a large amount still his due. The insurance company paid the amount due on the policy into court. Upon the trial of the issues, it appeared that the will had been admitted to probate, and that the plaintiff had appealed as stated; and also that Martha had failed to give the requisite bond and qualify as executrix. The answer, on leave granted, was amended, so as to state that fact. At the close of the trial, the court directed a verdict in favor of the plaintiff. Subsequently, and on motion of the defendant, it was, January 19, 1887, ordered by the court that said verdict be, and the same was thereby, set aside, and a new trial granted, because, as stated in the order, it appeared to the court that the issues in the cause could not be determined without the presence of the executor of Dan A. Shove, deceased, as a party in the action; and that all proceedings in the case be stayed until an executor be appointed and made a party to the action. From that order the plaintiff brings this appeal.

Markham & Noyes, for appellant.

W. J. Turner, for respondent.

CASSODAY, J.

It is admitted that the policy was made payable to the plaintiff merely as collateral security. This...

To continue reading

Request your trial
4 cases
  • Duxstad v. Duxstad
    • United States
    • United States State Supreme Court of Wyoming
    • March 21, 1908
  • Carberry v. German Ins. Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • November 7, 1893
    ...not maintain the action as sole plaintiff. Thatch v. Insurance Co., 11 Fed. Rep. 29; Insurance Co. v. Davenport, 37 Mich. 609;Shove v. Shove, 69 Wis. 425, 34 N. W. Rep. 392. The judgment of the circuit court on her appeal is affirmed. The question recurs whether the court improperly refused......
  • Swenson v. Wells
    • United States
    • United States State Supreme Court of Wisconsin
    • October 5, 1909
    ...in the action and order the necessary party plaintiff brought in, and not order the action abated. Section 2610, St. 1898; Shove v. Shove, 69 Wis. 425, 34 N. W. 392;Carney v. Gleissner, 62 Wis. 497, 22 N. W. 735;Emerson et al. v. Schwindt et al., 108 Wis. 173, 84 N. W. 186;McDougald v. New ......
  • Burnham v. City of Milwaukee
    • United States
    • United States State Supreme Court of Wisconsin
    • October 11, 1887

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT