Wolf v. Haslach

• Decision Date: 01 July 1902
• Docket Number: 11,609
• Citation: 91 N.W. 283,65 Neb. 303
• Parties: EMMA E. WOLF, APPELLEE, v. JOSEPHINE HASLACH, APPELLANT
• Court: Nebraska Supreme Court

91 N.W. 283

65 Neb. 303

EMMA E. WOLF, APPELLEE, v. JOSEPHINE HASLACH, APPELLANT

No. 11,609

Supreme Court of Nebraska

July 1, 1902

APPEAL from the district court for Platte county. Heard below before HOLLENBECK, J. Affirmed.

AFFIRMED.

McAllister & Cornelius, for appellant.

Reeder & Albert and R. W. Hobart, contra.

HASTINGS C. DAY and KIRKPATRICK, CC. concur.

OPINION

HASTINGS, C.

This case is an appeal from a decree of the district court for Platte county, perpetually enjoining defendant Josephine Haslach from collecting or attempting to collect from Theodore Wolf $ 3,000, and interest from January 4, 1900, and enjoining Theodore Wolf from paying it to her. The decree also appointed Hans S. Elliott trustee of the fund in the hands of Theodore Wolf, and authorized him to collect it from Theodore Wolf, with 6 per cent. per annum interest from January 4, 1900, and invest it to the best advantage, and pay the interest to Mrs Haslach during her life, and at her death pay the principal to the plaintiff. The trustee was empowered to use $ 66.66 annually of the principal, if necessary, to maintain Mrs Haslach. The trustee was required to give bond, and costs were taxed to Josephine Haslach, and she excepted and appeals from the decree.

At some time prior to 1888, Max Haslach died in Mercer county, New Jersey, and bequeathed his household furniture to Josephine Haslach, his widow. The rest of his property he left to his executor; the income to be paid to the widow semi-annually and on her death or remarriage to go to the testator's three children in equal shares. If the income was insufficient to support the widow in comfort, then not to exceed $ 200 per annum might be applied to that purpose. The children seem to have removed to the west in 1888 or before. In that year Mrs. Haslach visited them in Iowa. Her son-in-law Theodore Wolf proposed to pay her 7 per cent. per annum for her money. There was $ 3,000 bearing 6 per cent. in New Jersey and $ 3,000 bearing 5 per cent. interest, and a house worth about $ 3,000. The latter was sold later for $ 2,800. In 1889 the following assignment was executed by the son and his wife and the daughters and their husbands:

"Know all men by these presents: That we, Henry M. Haslach and Mary E. Haslach, his wife, of the town of Lyons, county of Clinton, and state of Iowa, Theodore Wolf and Emma E. Wolf, his wife, of the town of Creston, in the state of Nebraska, and William Henry Beck and Josephine Beck, his wife, of the city of Trenton, in the county of Mercer, and state of New Jersey, in consideration of one dollar, lawful money of the United States, to us paid, before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have sold, assigned, transferred and set over, unto Josephine Haslach, of the city of Trenton aforesaid, all our right, title and interest in and to the estate, both real and personal of Max Haslach, deceased, to which we or either of us have any right, title or interest either by purchase, descent or devise, or in any other manner or way, and we do each and every [one] of us authorize and empower the said executor of the said Max Haslach, deceased, to pay unto the said Josephine Haslach, our shares or share of the said estate, or such part thereof as may be in his hands as personal property, hereby waiving all benefit, profit, or advantage that may or might accrue to us to the contrary, notwithstanding. In witness whereof we have hereunto set our several hands and seals this twenty-eighth day of November, eighteen hundred eighty-eight."

Eight thousand seven hundred dollars was placed in the hands of Theodore Wolf, and some securities given to Mrs. Haslach. The matter seems to have run on until in 1897. Mrs. Haslach and some of her children became dissatisfied with Wolf's securities, and concerned for the safety of the fund. An action was instituted which resulted in a decree against him for $ 8,700. This seems to have been all paid except $ 3,000. Emma Wolf, the wife of Theodore, and the daughter of Mrs Haslach, brought this action to enjoin the collection of the remainder, and obtained the appointment of a trustee to manage it according to the terms of the will; alleging that her mother was insolvent and was claiming an absolute ownership under the assignment, instead of her life interest, as provided by the terms of the will. The daughter also claimed that the assignment was merely in order to facilitate the removal of the funds from New Jersey and from the custody of the executor to Nebraska, and...