Wells v. Wells

• Citation: 132 Wis. 73,111 N.W. 1111
• Court: Wisconsin Supreme Court
• Decision Date: 21 May 1907
• Parties: WELLS ET AL. v. WELLS ET AL.

132 Wis. 73

111 N.W. 1111

WELLS ET AL.

v.WELLS ET AL.

Supreme Court of Wisconsin.

May 21, 1907.

Appeal from Circuit Court, Green County; B. F. Dunwiddie, Judge.

Action by F. J. Wells and others against Thomas B. Wells and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

It appears from the record, and is undisputed or found by the court, that Peter Wells was born November 2, 1814; that he died intestate September 26, 1904, leaving him surviving five children, who are defendants herein, Thomas B., Joshua, Charles, Adeline M'Cammant, and Catherine Lichtenwalner, all of whom are defendants in this action, and also four grandchildren, who are children of his deceased son, Matthew Wells, who died at his residence the Sumner, Iowa, January 12, 1893, and all four of whom are the plaintiffs in this action. The said Peter Wells also seems to have left him surviving some $40,000 of personal property to be administered in this state, and also a large amount of real estate, said to be approximately worth $145,000. It appears that some two years and eight months prior to his death, and soon after he was 87 years of age, Peter Wells conceived the idea of dividing his real estate, or the most of it, among his children and grandchildren under the circumstances hereinafter stated. Pursuant to such purpose, and on January 27, 1902, he executed seven deeds, one to each of his five children and one to each of two of his grandchildren, of the lands therein respectively described. On April 29, 1905, the four grandchildren commenced this action against the son, Thomas B. Wells, and wife, and the other children of the deceased, to cancel, vacate, and set aside the deed so executed by Peter Wells to the said Thomas B. Wells January 27, 1902, of the lands therein described, as being a cloud upon the undivided one-sixth interest of the real estate left by the deceased, which the plaintiffs claim to own as heirs at law of said intestate and as tenants in common with their said five uncles and aunts. Thomas B. Wells answered the complaint in the action, claiming title under said deed to the lands therein described.

At the close of the trial the court found as matters of fact in addition to the facts stated (2) that the deed from Peter Wells to Thomas B. Wells was a warranty deed, reciting a consideration of $1 and the love and affection borne by the said Peter Wells to his said son, Thomas B. Wells, and describing the premises therein conveyed; (3) that upon the same date, January 27, 1902, the said Peter Wells also made, executed, and acknowledged in the same manner deeds of real estate upon the same express consideration to each of his other surviving children and also to two of said grandchildren; (4) that upon the same date, January 27, 1902, the said Peter Wells made and signed a memorandum in writing in words as follows: “I hereby direct that the deed hereto annexed shall five days after my death be delivered by my executor or administrator to my son, Thomas Wells, or his heirs, and that he have possession of the property contained therein. Peter Wells”--and did annex said memorandum to the said deed to the defendant Thomas B. Wells hereinbefore mentioned; that upon the same day he made and executed similar memoranda, which he annexed to each of the deeds to his other surviving children named therein; that each of said deeds with the memorandum attached to each was placed by the said Peter Wells in a separate envelope; that all of said envelopes containing such deeds with the memoranda attached were placed in a large box envelope, upon which was written, at the direction of said Peter Wells, “In escrow to Henry Ludlow, with directions to deliver as within stated”; (5) that January 27, 1902, said Peter Wells had in mind the drawing of a will to dispose of other parts of his property not disposed of by deed; that he had determined to name said Henry Ludlow as executor of said will, and that in using the words “my executor or administrator,” in said memoranda, said Peter Wells intended to describe and did mean said Henry Ludlow, the person to whom he intended to deliver said deeds for the grantee, and being the same person he intended to name as executor in his will; that said Peter Wells did not make a will, but intended such directions to be a direction to said Henry Ludlow to deliver said deeds to the respective grantees named in said deeds; (6) that January 27, 1902, the said Peter Wells at Monroe, Wis., did deposit said deed to the defendant Thomas Wells, together with the deeds to his other surviving children, each with a memorandum attached, as hereinbefore stated, and contained in said envelope, as herein before stated, with Henry Ludlow to receive and hold for the defendant Thomas B. Wells and the other respective grantees named in each of said deeds, with intent thereby to give each of such papers effect as a deed, and to place the same beyond the custody and control of the grantor, Peter Wells; that said Peter Wells delivered said deed to Thomas B. Wells, together with the other deeds inclosed in said envelopes, with instructions to the said Henry Ludlow to take them and hold them in his possession until after his. Peter Wells', death, and then to deliver them to their respective grantees named in the deeds, and said Peter Wells did relinquish all custody and control over said deed to Thomas B. Wells and the other deeds contained in said envelope as aforesaid; (7) that said Henry Ludlow did take said deeds and place the same in his safety deposit box in the First National Bank of Monroe, where he kept the same for the respective grantees until the 1st day of October, 1904, when the said Henry Ludlow delivered said deed made to said Thomas B. Wells as grantee to the said Thomas B. Wells, and each of the other deeds contained in said envelope aforesaid to the respective grantees named therein; that thereupon the said Thomas B. Wells caused his said deed to be recorded in the office of the register of deeds for Green county, October 1, 1904, in volume 87 of Deeds, p. 322; (8) that some time prior to January 27, 1902, the said Peter Wells placed the said Thomas B. Wells in possession of the property described in said deed, and that the said Thomas B. Wells had possession thereof for such time until the death of said Peter Wells, and still has possession thereof; (9) that the said Thomas B. Wells did not exercise any undue influence or any persuasion whatever over said Peter Wells to...