Bresee v. Stiles

Cole, J. It is insisted that the children born after the making of the will, are not entitled to claim any portion of the estate of the deceased. It appears that the will was executed in April, 1855. There were three children born between November, 1855, and September, 1859; and the testator’ died in August, 1861. There was no provision in the will for the after-born children; nor is it apparent from [124] the will that it was the intention of the testator that no provision should he made for them out of his estate. Under these circumstances, are they cut off by the will? This question is fully answered by our statute. Sec. 26, chap. 97, R. S. 1858, reads as follows: “ When any child shall be born after the making of his parent’s- will, and no provision shall he made therein for him, such child shall have the same share in the estate of the testator as if he had died, intestate; and the share of such child shall be assigned to him as provided by law in case of intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child.” This section effectually puts at rest all questions in regard to the effect produced in this case by the birth of issue after execution of the will. Eor it declares that such children shall have the same share in the estate of the testator as if he had died intestate, unless it appears from the will that it was the intention of the testator that no provision should be made for them.. It is said, however, that in construing the will we must take into consideration these facts: that the will was executed in April, 1855; that the children were born between November, 1855 and September, 1859; while the testator died in August, 1861, having made no provision for these children; and that-these facts raise the strongest presumption that it was the intention of the testator that the after-born children should not take any portion of his estate. But the difficulty with this argument is, that we are not permitted to look outside of the will to ascertain the purpose of the testator upon this point. Eor the statute positively declares, that unless it is apparent from the will itself, that it was the intention of the testator that no provision should be made for the after-born children, then they shall share in the estate as though no will had been made. Besides, it must be assumed that the testator was fully cognizant of [125] this' provision of the statute, and very well knew that his after-born children were not cut off by the will. If we were permitted therefore to speculate as to some supposed change in the mind of the testator, the legal presumption from the facts above stated would he, that the testator knew his after-born children would share in his estate, unless he altered his will, and was very well content with the disposition of his estate which the statute made, so far as those children were concerned. But it is further claimed, that the after-horn children were barred and divested of all interest in the estate by the order or judgment of the county court assigning the estate. It is said to he the special duty of probate courts, under our statute, to admit wills to probate; to adjudicate upon the rights of legatees and heirs; to settle all estates of deceased persons; and finally, to assign or distribute such estates among the persons by law entitled to the same; and the county court having made an order of distribution in this case, which disposes of the entire estate, and divests any title which the after-horn children might take in the same, that this order is final and conclusive upon the rights of those heirs, until it is reversed and set aside on appeal. Row, what effect should be given to an order of distribution made by the county court, which should divest the title of heirs in real estate, where those heirs have had notice, is a point upon which we express no opinion. It is sufficient here to say, that it no where appears that these minor heirs, whose rights are affected by the order, ever had any notice of it, or any opportunity to contest its validity. It is a very familiar principle, that, “to give any binding effect to a judgment, it is essential that the court should have jurisdiction of the person and subject matter; and the want of jurisdiction is a matter that may always he set up against a judgment, when sought to he enforced, or when any benefit is [126] claimed under it.” Borden v. Fitch, 15 Johns., 121; Rape v. Heaton, 9 Wis., 328; and Pollard v. Wegener, 13 id., 569. In order to bind these minor heirs by this order of distribution, it should at least appear that they were before the county court, or had notice of the proceedings. It is said that they were notified of the assignment of dower, and of the sale of the real estate by the executor. It is true, the proceedings 'before the county court show that notice was served upon the special guardian of the minor heirs of an application for a license to sell real estate; but this was some two years and a half before the order of distribution was made. But it does not appear that these minor heirs, or that their guardian, ever had any notice that the county court was about to make an assignment of the estate; and it seems to us difficult to maintain the position, that they are bound by a distribution depriving them of all interest in the real estate, when they were not a party to the proceeding, and had no notice thereof. Another question presented is, whether the widow was entitled to dower in the homestead. We think that she was. She waived the provisions made for her in the will, and petitioned for and had dower assigned her in all her husband’s real estate, except the homestead. On the death of the husband, the homestead descended by law to the widow, who could take and hold the same during her widowhood. Chapter 137, Laws of 1858. In addition, the widow is entitled to a dower, or use during her natural life, of one-third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof. Sec. 1, chap. 89, R. S. We suppose this general provision gives the widow dower in the homestead, as well as in the residue of the real estate. Does the fact that dower was not assigned her in the homestead at the time it was in the other real estate, have the effect to [127] deprive Per of dower in the Romestead after tire homestead right had terminated by her marriage? "We can perceive no satisfactory reason for saying that the omission to assign her dower in the homestead when it was set' out to her in the residue of the real estate, should prevent her from ever claiming it in that property. It was quite natural that so long as the widow could enjoy the homestead, she should not ask that dower he assigned her out of it. It is said, however, that where the widow has accepted an assignment of dower in satisfaction of her claims upon all the lands of her husband, the statute bars her from any further claim. Sec. 28, chap. 89. There is nothing in this case which warrants the assumption that the widow has ever accepted any assignment of dower in satisfaction of her claim upon all the lands of her husband. And the final order of distribution made by the county court does not attempt to bar the widow of her right of dower in the homestead, but, we think, rather recognizes it. However this may he,- there is nothing in the case which shows that the widow is not entitled to dower in the homestead. The plaintiff claimed to recover the entire property. He was- not entitled, upon this claim of the whole, to have judgment for an undivided part of the premises. Allie v. Schmitz, 17 Wis., 169. By the Court. — The judgment of the circuit court is affirmed.