Shuman v. Shuman (In re Shuman's Estate)

• Decision Date: 25 October 1892
• Parties: IN RE SHUMAN'S ESTATE. SHUMAN v. SHUMAN.
• Court: Wisconsin Supreme Court

83 Wis. 250

53 N.W. 455

IN RE SHUMAN'S ESTATE.

SHUMAN

v.SHUMAN.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Appeal from circuit court, Rock county; JOHN R. BENNETT, Judge.

In the matter of the estate of Lelia M. Shuman, deceased; Frances M. Shuman, by John C. Hurd, her guardian, etc., against Alexander Shuman. From a judgment of the circuit court awarding certain real estate to Frances M. Shuman, freed from the right of Alexander Shuman as tenant by the curtesy, and reversing a judgment of the county court, the said Alexander appeals. Affirmed.

The other facts fully appear in the following statement by LYON, C. J.:

In April, 1888, Lelia M. Shuman died intestate, leaving surviving her the appellant, Alexander Shuman, her husband, and Frances M. and Sarah M. Shuman, her children and only heirs at law. The intestate died seised of certain real estate in Rock county. Her estate was administered in the Rock county court, and such real estate was assigned to her said children by the court, but subject to the right of her husband, Alexander Shuman, as tenant thereof by the curtesy during his life. An appeal was duly taken to the circuit court from the order or judgment of the county court thus assigning and distributing the estate. For a history of this appeal, see Shuman v. Hurd, 79 Wis. 654, 48 N. W. Rep. 672. In August, 1890, Sarah M. Shuman, the younger of the two children of the intestate, died at the age of three years, and her estate was settled in the county court. See Shuman v. Shuman, 80 Wis. 479, 50 N. W. Rep. 670. On the hearing of the appeal in the circuit court, it appeared, and the court found, that on April 20, 1880, Mrs. Shuman, then Lelia M. Hurd, intermarried with one Andrew Ingle; that on November 15, 1884, the parties to such marriage were divorced by the judgment of the circuit court of Rock county; that such action for a divorce was commenced by the husband, October 3, 1884; that on February 10, 1885, the said Lelia M. Ingle intermarried with Alexander Shuman; and that her daughter, Frances M. Shuman, was born July 8, 1885. Thus far the facts are uncontroverted. The circuit court also found the following facts: “That the said child, Frances M., was so born at the expiration of the full, natural, and ordinary period of gestation, and that said child when so born was a fully developed and mature child; that during the months of September, October, and November, down to the 15th day, 1884, said Andrew Ingle and Lelia M., his then wife, lived, boarded, and lodged in the same house; that at all times during the three months prior to the judgment of divorce entered on said 15th day of November, 1884, said Andrew Ingle and his then wife, Lelia M., had access to each other; that the appellant, Frances M., is the lawful, legitimate issue and child of the marriage which existed between Andrew Ingle and Lelia M. Ingle; and that appellant, said Frances M., is the lawful, legitimate child and daughter of said Andrew Ingle and his then wife, Lelia M. Ingle.” The circuit court refused to allow the complaint, and the testimony of Mr. Ingle, in the divorce action, (which was substantially all the testimony in that case,) to be read in evidence. Mrs. Ingle did not defend the action. Had the above testimony been received, it would have appeared by the complaint that the cause assigned for a divorce was desertion, in that for nearly two years then last past Mrs. Ingle had refused to have sexual intercourse with her husband, and asserted that she would not cohabit with him or allow him the privileges of a husband in the future. The testimony of Mr. Ingle substantiated the allegations of the complaint in the particulars aforesaid. The court also rejected certain letters written by Mrs. Shuman to her last husband, after the birth of Frances M., in which she speaks of the child as the daughter of Mr. Shuman. The circuit court gave judgment reversing that portion of the judgment or order of the county court which gives Mr. Shuman a life estate in the lands of which Mrs. Shuman died seised, as tenant thereof by the curtesy. Mr. Shuman appeals to this court from the judgment of reversal.

Smith & Pierce, for appellant.

Winans & Hyzer, for respondent.

LYON, C. J., ( after stating the facts.)

Section 2180, Rev. St., is as follows: “The husband on the death of his wife shall hold the lands of which she died seised, and which were not disposed of by her last will and testament, for his life, as tenant thereof by the curtesy: provided, that if the wife, at her death, shall leave issue by any former husband, to whom the estate might descend, such issue shall take the same, discharged from the right of the surviving husband to hold the same as tenant by the curtesy.” Hence, if Frances M. Shuman is the issue of the marriage of Andrew Ingle and Lelia M. Ingle, afterwards Shuman, (as the circuit court found her to be,) the appellant, Alexander Shuman, is not entitled to curtesy in those lands of which Mrs. Shuman died seised, which descended to Frances M. On the other hand, if Andrew Ingle is not the father of Frances M., the presumption probably is that she is the daughter of Alexander Shuman, who, in that event, is entitled to curtesy in the lands which she inherits from her mother. The rules of evidence by which it must be determined whether Frances M. is or is not the lawful issue of the marriage of her mother and Andrew Ingle are unaffected by the fact that she was born after the marriage of her mother and Alexander Shuman. The last marriage may save Frances M. from being a bastard in case Andrew Ingle is not...