Van Osdell v. Champion

• Decision Date: 05 March 1895
• Citation: 62 N.W. 539,89 Wis. 661
• Parties: VAN OSDELL ET AL. v. CHAMPION ET AL.
• Court: Wisconsin Supreme Court

89 Wis. 661

62 N.W. 539

VAN OSDELL ET AL.

v.CHAMPION ET AL.

Supreme Court of Wisconsin.

March 5, 1895.

Appeal from circuit court, La Fayette county; George Clementson, Judge.

Action by Mary E. Van Osdell and others against Ellen Champion, administratrix of the estate of Charles B. Champion, deceased, and others. From a judgment for some of the plaintiffs, defendants appeal. Affirmed.

An action was brought for the partition of certain lands, against Charles B. Champion, who claimed an undivided fifth interest in the same, under the residuary clause of the will of his mother, Elizabeth Champion, and against various others interested in said premises, claiming under the will and as incumbrancers. The premises were sold under the judgment in the partition suit, and the proceeds of the interest of said Charles B. Champion therein paid into court, amounting to $2,116.17; and they were claimed by divers judgment creditors of the said Champion, among others the respondents Calvin R. Corbin and Horatio May, under a judgment in their favor, and against Champion, rendered May 7, 1870, and by L. A. Clinton, under a similar judgment, and they filed petitions in the partition action, claiming said moneys. Their claims were resisted by Ellen Champion, widow and administratrix of the estate of Charles B. Champion (who had died in the meantime), on the ground that his interest in the lands was not subject to levy or sale on execution, by reason of the provisions of the will of his mother, through which he obtained his title, and also by other defendants, who held alleged incumbrances against his interest in the lands. A trial was had before the court upon issues joined on these petitions; and it was found, among other things, that the interest of Champion in the lands had been sold on execution issued October 4, 1890, upon leave granted, on the judgment in favor of Corbin and May, and that it remained unredeemed from such sale; that the entirety of the lands was devised by Elizabeth Champion to Charles B. Champion and four others, equally, share and share alike, their heirs and assigns, forever, the testatrix making in said devise “this express condition: that the share of my said son, Charles B. Champion, shall in no wise ever be subject to any debt, liability, execution, attachment, or judgment against said Charles B. Champion, existing at this time or any time hereafter”; that the judgment in favor of L. A. Clinton against Champion was rendered May 6, 1890, and was found to be the paramount lien, the lien of the Corbin and May judgment having expired; that the dower interest of Ellen Champion, the widow of the deceased, in the fund in court, was $427.87, which she had elected to take for her dower; that the amount due on the judgment of L. A. Clinton was $291.68; and that the remainder of the fund--$1,396.61--belonged to, and should be paid over to, Corbin and May; and judgment was given for the payment of these sums accordingly, and for costs in favor of Corbin and May, and also in favor of L. A. Clinton, against Ellen Champion, as administratrix, etc., to be paid in course of due administration out of the estate of Charles B. Champion, deceased, and against George F. West and other defendants named, who had resisted and defended against said petitions. The costs in favor of Corbin and May were taxed by the clerk, allowing only $25 attorney's fees to the petitioners, which, on their appeal, was increased by the court to $67.12. From this judgment, Ellen Champion, as administratrix, etc., appealed.

Wilson & Martin and Calvert Spensley, for appellants.

P. B. & J. B. Simpson and W. E. Carter, for respondents.

PINNEY, J. (after stating the facts).

1. It is laid down as a general rule that “a condition, annexed to a conveyance in fee or by devise, that the purchaser or devisee should not alienate, is unlawful and void. If the grant be upon the condition that the grantee shall not commit waste, or not take the profits, or his wife have her dower, or the husband his curtesy, the condition is repugnant and void, for these rights are inseparable from the estate in fee. Conditions are not sustained when they are repugnant to the estate granted, or infringe upon the essential enjoyment of the independent rights of property, and tend manifestly to public inconvenience.” Kent, Comm. *131; 2 Redf. Wills, 287, 290. “But it has been held that land may be conveyed to a married woman so as to exclude her husband upon her death from becoming tenant of the premises by the curtesy.” Haight v. Hall, 74 Wis. 152, 42 N. W. 109. The authorities are very generally agreed that property cannot be conveyed, devised, or bequeathed with a restriction against it, or any portion of it, going...