VoLk v. Stowell

Decision Date08 February 1898
Citation98 Wis. 385,74 N.W. 118
CourtWisconsin Supreme Court


Appeal from circuit court, Polk county; A. J. Vinje, Judge.

Action by S. A. Douglass Volk and others against Judd Stowell. From a judgment dismissing the action, plaintiffs appeal. Affirmed.

This was an action for the recovery of certain real estate, called the “Hermitage Farm,” situated on the north shore of Poplar Lake, in Polk county, of which Leonard W. Volk died seised August 19, 1895, having made on the 1st of April, 1895, a written agreement with the defendant, Stowell, by which it was agreed that the latter should take charge of the management, care, and cultivation of said farm, or any additional adjoining land that might be thereafter purchased by said Volk, for a term of five years from that date, subject to extension, as the parties might mutually agree. The defendant was to devote his entire time and best effort to the management, care, and cultivation of said farm, and to faithfully and diligently serve the exclusive interests of the said Volk therein, for the designated period. Volk agreed to pay the defendant therefor a monthly salary of $30, payable at the end of each month, and to furnish him a hired man or strong boy of about 18 years of age, and that during harvest time, if necessary, Volk would furnish an extra man or boy. Besides the monthly salary or wages to be paid said Stowell, said Volk was to allow him additional 15 per cent. of all increase of stock (quadrupeds and bipeds) born or hatched on the said farm; also 15 per cent. of all products of the soil, field, and garden. Among other things, it was agreed that any stock might be sold from time to time or increased according to the wishes or direction or option of Volk. The defendant was “to have the use of the farm house, fuel, and private garden free.” The “Lodge,” so called, on the premises, was exclusively for the use of Volk, as well as the log house at east end of farm, with a small garden and granary. All original stock was to be kept good according to schedule, if the 60 acres, more or less, produced food sufficient to feed them through the winter. It was agreed that at the end of every six months the monthly percentage might be increased or reduced, according to the yield of stock and products of the soil, as might be mutually agreed upon between said Volk and the defendant. “In case of failure or neglect of the defendant to perform the covenants and agreements on his part, * * * the contract should, at the option of said Volk, become forfeited and determined;” and, in such event, the defendant agreed “to immediately surrender up the premises to said Volk.” In case of the death of the defendant before the expiration of the contract, the same should terminate, and any wages or percentages due to him at that time were to be paid to his heirs or legal representatives “by said Volk, or his heirs or representatives or assigns, upon whom this contract shall be binding.” By the last will and testament of said Volk. which has been duly admitted to probate, he devised the premises in question to his grandchildren then living the issue of his son Stephen A. Douglass Volk and his wife, Marion Laribee Volk, and to his grandchildren then living the issue of his daughter Elizabeth Honora and her husband, William B. Colt, naming them, or any other grandchildren who might thereafter be born; that is to say, as each of said grandchildren should reach the lawful age, he or she should be entitled to their proportion of the revenues, profits, and benefits, of whatsoever kind, of said farm, to be divided by the probate judge of said Polk county, or such trustee as he might appoint, as the guardian and trustee or executor. Their parents, during the minority of the grandchildren, were to be entitled to all revenues, divided equitably, etc. The parents of the grandchildren mentioned in the will, Stephen A. Douglass Volk and Nora Volk Colt, are children of the testator, and they brought this action for the recovery of the premises in question, charging the defendant with unlawfully withholding the same. The answer was a general denial. H. P. Burdick, administrator of the estate of said Leonard W. Volk with his will annexed, was subsequently joined as a party plaintiff. Upon trial by the court, the facts were found as stated, and that the defendant had occupied the premises under and by virtue of said contract from its date, and still occupied the same, and that said Leonard W. Volk lived upon the same after the contract was made to the time of his death. The circuit court held that the defendant was entitled to the possession and occupancy of the farm house on the premises, and such possession as would enable him to take charge of the management, care, and cultivation of the farm according to the terms of the contract; that the plaintiffs were not entitled to the exclusive possession of the premises; and gave judgment dismissing the action, from which the plaintiffs appealed.

H. P. Burdick, for appellants.

F. B. Dorothy, for respondent.

PINNEY, J. (after stating the facts).

1. There is neither allegation nor proof to show that the rents and profits of the real estate in question were needed for the payment of debts of the testator or in the settlement of his estate, or that he left debts unpaid or not provided for. At common law, the executor or administrator had nothing to do with the real estate of which the testator or intestate died seised. Jones v. Billstein, 28 Wis. 221. When there are no debts or legacies to be paid, there is no valid reason why the executor or administrator should have the possession of the real estate. Flood v. Pilgrim, 32 Wis. 376;Filbey v. Carrier, 45 Wis. 469;McManany v. Sheridan, 81 Wis. 542, 51 N. W. 1011. The burden of proving that there were debts of the testator to be paid was on the...

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11 cases
  • MacDonald v. Fitzgerald
    • United States
    • North Dakota Supreme Court
    • March 1, 1919
  • Hoyt's Estate, In re
    • United States
    • Wisconsin Supreme Court
    • December 20, 1963
    ...the devisee. Marsh v. Board of Supervisors (1875), 38 Wis. 250; McManany v. Sheridan (1892), 81 Wis. 538, 51 N.W. 1011; Volk v. Stowell (1898), 98 Wis. 385, 74 N.W. 118; and see Estate of Rieman (1956), 272 Wis. 378, 75 N.W.2d Secondly, even if the executor were held to be a proper party in......
  • In Re The Estate Of James F. Sheppard. Thomas S. Ryan v. Estate Of James F. Sheppard, 2009AP1307.
    • United States
    • Wisconsin Court of Appeals
    • July 14, 2010
    ...his “pilot in command.” ¶ 9 The well-settled rule is that death alone does not discharge contractual obligations. See Volk v. Stowell, 98 Wis. 385, 390, 74 N.W. 118 (1898). However, the many exceptions to this rule include personal service contracts, “where distinctly personal consideration......
  • Barrett v. Towne
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 26, 1907
    ...Grapel v. Hodges, 112 N. Y. 419, 20 N. E. 542;Janin v. Browne, 59 Cal. 37, 44;McCann v. Pennie, 100 Cal. 547, 35 Pac. 158;Volk v. Stowell, 98 Wis. 386, 393,74 N. W. 118. Nor was this obligation discharged by the conversation between the plaintiff, and one of the executors before any indebte......
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