Smith v. Schreiner

• Decision Date: 26 September 1893
• Parties: SMITH v. SCHREINER.
• Court: Wisconsin Supreme Court

86 Wis. 19

56 N.W. 160

SMITH

v.SCHREINER.

Supreme Court of Wisconsin.

Sept. 26, 1893.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Julia S. Smith against David Schreiner, administrator, to recover a legacy. Judgment for plaintiff. Defendant appeals. Affirmed.Bushnell & Watkins, for appellant.

Carter & Burns, for respondent.

ORTON, J.

Dr. Jehiel H. Hyde executed his last will and testament November 20, and died December 7, 1869, in Grant county, this state. The will was duly probated, and one Addison Burr, named as executor in the will, was duly appointed, and made his final settlement in January, 1870, and there remained in the hands, after payment of all the debts, the sum of $7,313.61, which amount, by the order of the county court, was paid over to Mrs. Sarah Hyde, the widow of the testator, according to the will. By the will all of the estate of the testator, real and personal, was devised and bequeathed to his wife, the said Sarah, “to have and to hold during her natural life, unless she should again marry, in which case she shall forfeit all right to the personal estate that may remain, and all right to the real estate, or the proceeds thereof. The personal estate, before such remarriage, she may dispose of as her necessities may require, or as her judgment may dictate to be right and expedient.” She was authorized and empowered to sell and convey the homestead, and have the use of the proceeds during her natural life. “On her remarriage or death all the personal estate that may remain unexpended, and all the real estate or proceeds thereof, shall be equally divided among the children of the testator's brother of full blood.” There was a bequest or legacy of $600 to the plaintiff, Julia Smith, wife of Dr. C. Stoddard Smith, to be paid at the time of the final distribution of the estate. It appears that said Sarah Hyde, the widow of the testator, before her decease, disposed of nearly or quite all of the personal estate which came to her hands under the will, to the said Julia Smith, the said plaintiff, and to her husband, the said Dr. C. Stoddard Smith, of the value of five or six thousand dollars. The appellant, as the administrator of the estate de bonis non, brought suit in equity against the said Julia and C. Stoddard Smith in the circuit court of the United States for the northern district of the state of Illinois, about May 17, 1886, for the purpose of compelling them to account for such part of the estate as came to their hands by and through the said Sarah Hyde as aforesaid, and pay the same over to him as administrator de bonis non of said estate. On the final hearing of said suit said court dismissed the complaint therein on its merits, for want of equity, and said judgment still remains unreversed in the records of said court. It was held in said suit that the above clause of the will clothed Mrs. Sarah Hyde, the said widow of the testator, with the full power of disposition of the personal estate, and that such disposition thereof by her, in her lifetime, to the said Sarah Smith and her husband, was absolute and binding on the residuary legatees. The said administrator de bonis non thereupon appealed from said judgment to the supreme court of the United States, where said appeal is still pending, and no supersedeas was granted thereon.

This action is brought by the said Julia Smith to recover her said legacy of $600, and the said administrator de bonis non has answered, setting up that the plaintiff has already in her hands said five or six thousand dollars she received from the said Mrs. Sarah Hyde as aforesaid, as a part of said estate, which should be applied to the full payment of said legacy. The plaintiff sets up the said judgment in bar of this defense as res adjudicata of the same matter, and between the same parties; and the circuit court so held, and rendered judgment against the appellant for said $600, less $59.25 already paid, with interest from October 1, 1889. The main question on this appeal is therefore whether said judgment is a bar, notwithstanding said appeal. This question has not been directly decided by this court. Neuman v. State, 76 Wis. 112, 45 N. W. Rep. 30, seems, however, to decide the principle. Proceedings were taken before the village board to revoke the license of Neuman to sell liquors in the village of Bloomington. The board entered an order revoking his license. He took the case to the circuit court on...