Simpson v. Cornish

• Decision Date: 07 February 1928
• Citation: 196 Wis. 125,218 N.W. 193
• Parties: SIMPSON ET AL. v. CORNISH ET AL.
• Court: Wisconsin Supreme Court

196 Wis. 125

218 N.W. 193

SIMPSON ET AL.

v.CORNISH ET AL.

Supreme Court of Wisconsin.

Feb. 7, 1928.

Appeal by the plaintiffs from an order of the Circuit Court for Kenosha County; E. B. Belden, Judge.

Action by Robert Simpson and others, by Holger M. Peterson, guardian ad litem, against Nellie C. Cornish and others. From an order overruling general demurrers to answers of defendants Margaret Windorf and another, plaintiffs appeal. Affirmed.--[By Editorial Staff.]

Appeal by the plaintiffs from an order of the Circuit Court for Kenosha County, Hon. E. B. Belden, Judge, overruling general demurrers of the plaintiffs to the answers of the defendants Margaret Windorf and Henry J. Lageschulte.

The plaintiffs are minors, and this action is brought by them through their guardian ad litem, for the purpose of removing certain clouds upon their alleged title to a certain farm located in Kenosha county, Wis., and to quiet their title in and to said farm, and for an accounting.

One Robert Simpson, a resident of Evanston, Ill., as is alleged in the complaint, died testate on June 22, 1914. It is also alleged in the complaint that his will was admitted to probate in the county court for Cook county, Ill., and that an authenticated copy thereofwas recorded in the office of the register of deeds of Kenosha county on December 2, 1925. The proceedings for the probate of the will of the deceased, Simpson, are fully set forth in the pleadings, and, as a part of the prayer for relief in the complaint, the plaintiffs demand that all proceedings, orders, and judgments prosecuted and entered by the courts hereinafter referred to, adverse to the interests of the plaintiffs in and to the real estate therein described, be set aside, and adjudged null and void; that title in and to said farm by the defendants under the last will and testament of the testator, Simpson, be set aside and annulled; and that the defendants be ordered and adjudged to account for all of the proceeds of said property while the same was held in possession by them; and for such other and further relief as the court might deem equitable and just.

The defendants Margaret Windorf and Henry J. Lageschulte appeared in the action, and interposed and served answers to the plaintiffs' complaint, and to the answers so served and filed the plaintiffs interposed demurrers, which, as we construe them, are general demurrers.

We have compared the synopsis and digest of the answers, set forth in the brief of the learned counsel for the answering defendants, and are satisfied that the same present substantially all of the material allegations contained in such answers necessary to be considered upon these demurrers, and therefore, in order to save time and for brevity sake, we take the liberty of setting forth such synopsis and digest verbatim. Such synopsis and digest consist of the following:

“(1) That said will was, on August 4, 1914, propounded for probate by the executors therein named, being three of testator's children and one other, to the probate court of Cook county, Ill., and that, upon a hearing had, after due notice, probate thereof was denied by that court.

(2) That on April 20, 1916, a judgment of the circuit court of Cook county dismissing for want of equity a bill filed by said plaintiffs by guardian ad litem to vacate said order of denial, was duly affirmed by the Supreme Court of Illinois.

(3) That, after denial of probate of said will and on September 14, 1914, upon application of one or more of the children of the deceased to said probate court, alleging intestacy, an administrator was duly appointed and the estate administered in due course as intestate; that the final account of the administrator was duly passed and allowed, and the Illinois estate assigned and distributed to and among the heirs, some time in 1918.

(4) That in July, 1916, Eureka Belle Anderson, a daughter of the deceased, to whom her brothers and sisters, including plaintiffs' own parents, had previously conveyed their interests in said Kenosha county farm, applied to the Kenosha county court for administration of the Wisconsin estate (real and personal) as intestate property.

(5) Hearing was had upon waiver signed by all of the heirs at law, including plaintiffs' father, and on July 25, 1916, an administrator was appointed, following which the estate was regularly administered and a final order entered May 8, 1918, which, among other things, found and determined the fact of intestacy, that the title vested in the seven children as heirs at law, that the other children, including plaintiffs' father and mother, had conveyed to Mrs. Anderson, who was then the sole owner, and assigned the farm to her accordingly.

(6) That the orders of the Kenosha county court and the proceedings in that court have never been appealed from or set aside, but remain in full force.

(7) That, after the finding of intestacy by the Kenosha county court, and appointment of an administrator, the defendant Margaret Windorf loaned Mrs. Anderson $10,000, taking as security a mortgage on said farm, which was duly recorded on July 28, 1916.

(8) That at and before the time of making said loan the said Eureka Belle Anderson, alone or with her brothers and sisters, had been in the open, notorious, quiet, and peaceable possession of said premises from the death of Robert Simpson in 1914.

(9) That said loan was made in good faith, without any notice of the alleged will, or of any controversy over or adverse claim of title to said premises, and in reliance upon the county court record showing intestacy, Mrs. Anderson's representations to the same effect supported by her warranty of title in the mortgage, and an abstract of the title exhibited to defendant and her attorney, showing record title in the mortgagor.

(10) That Eureka Belle Anderson continued in possession of said farm, paying interest on said mortgage, down to May 24, 1918, when she sold to defendant Lageschulte, conveying by deed with full covenants of warranty.

(11) That defendant Lageschulte purchased in good faith, for a valuable consideration, without knowledge or notice of the alleged will or of any adverse claim whatever, in reliance upon said covenants of warranty and an abstract showing completed administration of said estate and a complete and perfect title in his grantor.

(12) That thereafter similar sales and conveyances were successively made by Lageschulte to P. B. Johnson, and by Johnson to Albert P. Jones, and a contract of sale made by Jones to one Jacob Westerhoff down to and including April 17, 1921, shortly after which the Windorf mortgage became due.

(13) That all said deeds and said land contract were duly and promptly recorded.

(14) That said mortgage, not being paid at maturity, was foreclosed in the circuit court for Kenosha county, in an action wherein Margaret Windorf was plaintiff and Eureka Belle Anderson, Henry J. Lageschulte, Johnson, Jones, and Westerhoff were defendants. That in said action judgment of foreclosure in the usual form was duly entered on September 17, 1921, a sale was had on March 24, 1923, at which the farm was struck off to Mrs. Windorf for $12,500, and a sheriff's deed was executed to her, under which she now claims and holds possession.

(15) That on June 20, 1923, the plaintiffs appeared by attorney in said foreclosure action, and filed an affidavit and motion in oppositionto the confirmation of said sale, but said motion was overruled, and the sale confirmed.

(16) That, after being defeated in the Supreme Court of Illinois in April, 1916, the plaintiffs did nothing further to establish their alleged rights until after the Simpson estate had been fully administered as intestate, both in Illinois and Wisconsin, and not until June 10, 1919, when they filed a petition in the probate court of Cook county to set aside the order of that court denying probate of the will and for a rehearing. Upon this petition (of which no notice was given defendants, Windorf or Lageschulte), the order was vacated, a rehearing ordered and had, and probate again denied.

(17) That such proceedings were thereafter had by appeals to the circuit court of Cook county and to the Supreme Court of Illinois, all without the knowledge of, or notice to, the answering defendants that said will was admitted to probate in the probate court of Cook county on January 22, 1922.

(18) That subsequently the surviving children of Robert Simpson (two of them having died) filed a bill in equity in the circuit court of Cook county, to contest said will and set aside the probate thereof, making said minors defendants.

(19) That said action in equity was never brought to trial, but, on April 15, 1925, was compromised and settled by an agreement between the parties in form approved by the circuit court and probate court, which provided for the dismissal of said action in consideration of a disposition of the estate of said Robert Simpson substantially different from the terms of said will, by means of certain payments of money and conveyances of property to be made by and between said minor and adult parties, and that, as the result of such compromise agreement, duly carried out by the parties, and not otherwise, the probate of said instrument was finally in form allowed and established.

(20) That the answering defendants were not parties to said equity action, or to any of the other proceedings in the probate or circuit court of Cook county or the Supreme Court of Illinois, took no part therein, and had no notice or knowledge thereof until about the time of the dismissal of said equity suit, and that said compromise settlement was made and entered into without their knowledge or consent, and in fraud of their rights.

(21) That the alleged will has never been filed or offered for probate in the county court of Kenosha county, and defendants have never had any day in court or opportunity to be heard in respect thereto.

(22) That the alleged...