Beem v. Kimberly

Taylor, J. The learned counsel for the appellants, in their briefs and in their oral arguments in this court, attack the findings in regard to the genuineness of the signature to the notice of the election filed by Lucy Ann Kimberly in the county court of Winnebago county, and also the finding that she caused it to be filed in said court. After a careful consideration of the evidence upon which these findings are based, we are not only of the opinion that the findings are supported by the evidence, but that the preponderance of the evidence is in favor of such findings. It is urged that because two witnesses on the part of the appellants, who are apparently impartial witnesses and experts, testified, from a comparison of the admitted signatures of Mrs. Lucy Ann Kimberly with the signature of the notice of election, that in their opinions the signature to such notice of election was not her genuine signature, the court should have found-that the signature was not the signature of Mrs. Kimberly, but was a forgery. One of the witnesses relied upon is Frank Ileilig. lie testifies that he is an expert as to signatures, and says, after being shown several signatures purporting to be the signatures of Mrs. Lucy Ann Kimberly : “All these s:gnatures were not written by the same party, that is, I don’t think they were. I think I should pay them all except the one marked ‘Exhibit P.’” Exhibit P is the notice of election. Thomas Daly, the other expert, testified that, “I doubt very much if that is the genuine signature of the person who made the other signatures.” Upon cross-examination both these witnesses seem to place their opinions mainly upon the fact that in the signature to the notice of election the lower part of the “y” — 362 — is not looped as they are in the other signatures. To me it seems that, when we consider the circumstances under which, it appears from the evidence, it is claimed Lucy Ann Kimberly signed the notice of election, these defects in the signature are of little or no importance in determining its genuineness. The evidence shows that .when it'is claimed she signed she ivas very feeble, lying on a lounge, had to be supported while she signed, and signed on a book or school atlas lying on her knees. Under such circumstances ii; is evident there wrnuld be a difference between her signature and her ordinary signature made in a convenient place and when in good health. The omissions in the loops of the “y ” might well be accounted for by reason of her position and weakness at the time. The defects are certainly not evidence of any attempted forgery by an expert at the business of forgery. They are such palpable defects that any person attempting to imitate the signature could not but observe and correct them. It is useless, however, to give our reasons for thinking the signature genuine. The court below has found in favor of -the genuineness of the signature, and there certainly is no such want of evidence to support the finding as would justify this court in reversing that finding. See Daniels v. Foster, 26 Wis. 686, 693. The finding that Lucy Ann Kimberly caused her notice of election to be filed in the office of the county court of Winnebago county on the 24th day of April, 1882, we are very clear is sufficiently sustained by the evidence. In the first place, admitting that the signature is genuine, and the paper is afterwards found in the office of said court duly filed therein as one of the papers or documents belonging to the records of said court, nothing else appearing in she case to cast suspicion upon the paper or its filing, the presumption of law is that it was properly filed, and the burden of proof is upon the party denying the fact of such filing. Boyd v. Wyley, 18 Fed. Rep. 355, 358, 359, and — 363 — other oases cited in respondent’s brief; secs. 2172, 4140, R. S. There is, however, other evidence in the case sufficient to show that the filing was at the request of the widow. The paper was delivered for filing by a reputable attorney, and in the absence of all proofs to the contrary it must be presumed that he was authorized to file the same on behalf of the widow. The filing of this notice of election is made by sec. 2172, R. S., a part of the proceedings in the probate of the will and the administration of the estate of the deceased testator, and when filed it becomes a part of the record of such proceedings as fully as any other paper in the case. ' The authority of the attorney filing the same should be presumed until the want of such authority is made to appear by proper evidence. Shroudenbeck v. Phœnix F. Ins. Co. 15 Wis. 632. It is also alleged as error that the court improperly permitted Mrs. Beem, the respondent, to testify that she saw her mother sign the notice of election not to take under the will. Admitting that such evidence was improperly admitted, such error on the part of the court does not necessarily make it the duty of this court to reverse the judgment, if the other evidence in the case, which was property admitted, sustains the finding of the court upon the genuineness of the signature of Mrs. Kimberly. We have no hesitation in saying that if all the evidence of the respondent on the subject of the signature of Mrs. Kimberly was rejected, still there is sufficient to sustain the finding of the court. But this court has decided that it was competent for Mrs. Beem to testify as to her opinion of the genuineness of the signature of Mrs. Kimberly, especially if her opinion was based upon her general knowledge of her handwriting, and not upon the fact that she saw her write the particular signature in question. See Daniels v. Foster, 26 Wis. 693. Mrs. Beem was the granddaughter of Mrs. Kimberly and had been brought up by her as her child in — 364 — her family, and, if any one rvas competent to give an opinion as to the genuineness of her grandmother’s signature, she would seem to be competent. j It is also urged that it was error to exclude certain evidence offered as to the manner in which Judge Hamilton wrote his name. We are unable to see the pertinency of the evidence offered; nor do we see the propriety of the offer of a letter purporting to have been written by Mrs. Beem, but which had never been sent to any or.e, and, so fr,r as appears, had never been out of her possession until called for and produced by her on the trial of this action. The paper offered and rejected appears to have been a draft of a letter written by Mrs. Beam, an exact copy of which was made in a different handwriting, and sent by her to Mr. Kimberly. The draft had some erasures in it, which do not appear in the letter sent. It seems the offer was made for the purpose of showing these erasures. We think it was properly rejected. The original draft is in the record, and was exhibited to this court upon the argument. We cannot see how the admission of it as evidence in the case could have aided the appellants. The learned counsel for the appellants contend, with great earnestness, that Mrs. Kimberly, by receiving from the executor of her husband’s estate some $900, which was necessary for her support during the five months next after the death of the testator, is estopped from electing to take the share of the testator’s estate which the law gives her, and is bound by the terms of the will. The provision for the widow in the will is in the following language: “Second. I do hereby give, devise, and bequeath to my wife, Lucy Ann Kimberly, the rents, issues, and profits of one third of all the real and personal estate of which I shall die seized and possessed, during her natural life, to be used and disposed of for her sole use and benefit, as to her shall seem best; and I do hereby will and direct that one third of my — 365 — said estate, both, real and personal, of which I shall die seized, shall be leased and invested in such interest-bearing securities as my said executrix and executors shall deem safest and most desirable.” There is no evidence in the case that at the time any part of this money was received from the executor by Mrs. Kimberly such executor had segregated the one-third of the estate, and leased or invested the same or any part thereof for the benefit of the widow, and that she, knowing such fact, had requested the executor to pay over to her this money as a part of that income, secured to her by the will. In fact the contrary is made to appear. This-money was paid before any segregation of the estate had been made, and was paid over upon a request made by the widow that she might have something for her present support. It seems to us little short of an absurdity to say that the widow should be estopped from making her election to take what she was entitled to by law of the estate of her deceased husband, because her necessities required that she should have something for her sustenance while she was deliberating whether she would take under the will or under the law. The law having given the widow one year after the death of her husband in which to elect whether she will take under, the will, there must be a very clear and strong case made against her right to exercise the right at any time within the year. If she can bar herself of that right before the expiration of the year, it must be done with a full knowledge on her part that she is giving up such right. Her acts must at least be entirely inconsistent with her right to subsequently make such election. In the case at bar it is just as consistent for her to receive what she did from the executor, if she intended to claim what the law’ gave her, as if she intended to take under the will, and it is evident the executor would just as readily have given her the money asked in the one case as in the other. In either case the money she received — 366 — would be but a small portion of what she was entitled to. The following authorities clearly show that the widow had done nothing in this case to estop her from making her election to take what the law gave her: Millikin v. Welliver, 37 Ohio St. 460; Sill v. Sill, 31 Kan. 248; Sanford v. Sanford, 58 N. Y. 69, 73; Bretz v. Matney, 60 Mo. 444; O'Brien v. Elliot, 15 Me. 125; 2 Williams on Ex’rs, top p. 1558, note g; Cox v. Rogers, 77 Pa. St. 160; Spread v. Morgan, 11 H. L. Cas. 588; Padbury v. Clark, 2 Macn. & G. 307; Whitridge v. Parkhurst, 20 Md. 62; Bradfords v. Kents, 43 Pa. St. 474. It is further insisted by the appellants that it is too late to attack the order of the county court of Winnebago county, which assigned all the residue of the estate to the appellants. If it be admitted that the determination of the county court is conclusive upon all parties until set aside for cause, still we are of the opinion that the order was obtained by the appellants upder such circumstances that it ought to be set. aside because fraudulently obtained as against the respondent. The findings of the circuit court as to what facts were known to the executor when he obtained the order of the county court distributing the residue of the estate of his testator are fully sustained bjr the evidence. The material facts may be stated briefly as follows: He knew that Mrs. Lucy Ann Kimberly, the widow of his testator, had legally declined to take the provisions tendered her by the will of the testator; he knew, therefore, that she was entitled to one third of the net personal property of deceased which was in his hands as executor of the estate of said deceased; he knew that the widow’ had died, leaving a will, vdiich had been probated, by which all the personal and real estate of the said widow had been duly devised and bequeathed to the respondent in these proceedings, and that she made claim to all that part of the estate of his testator in his hands which by law belonged to the widow, Lucy Ann. — 367 — Kimberly; he knew where the respondent resided, and had been in correspondence with her. Previous to applying for the settlement of his accounts as executor he had not intimated to the respondent that he intended to contest the right of the deceased widow of Harvey L. Kimberly to the one-third part of the personal estate of his testator in his hands as executor, nor that he intended to contest the right of this respondent to receive the share of the estate -which belonged to said widow; and upon his application to the court for an order distributing the estate he made no proof showing his or his brother’s right to the whole of said estate, nor did he bring to the notice of the county court the fact that the respondent, as the legatee of the deceased widow, claimed any part of said estate. Upon this state of the facts it seems to us that the" circuit court justly found that the order distributing the entire estate to the appellants was fraudulently obtained as to this respondent. If we consider the relation which the executor bore to the widow and to her legatee, we think this finding is eminently just. Under the statute the widow’s right to the one-third share of the personal property of her deceased husband, belonging to him at the time of his death, cannot be divested by any act of the husband, by his will or otherwise. All he can do is to offer her by his will something in place of the estate secured to her by the law, and if she accepts it she cannot claim the right given her by the law; if she refuses to accept it within the time and in the manner prescribed by law, then she takes the one-third of the personal estate of her husband by virtue of the law, and not in any way under the will of her husband, and she is entitled to have her share distributed to her by the proper court. Under our system the executor of the will, to whom letters of administration with the will annexed are issued, takes possession of all the personal estate of the testator, whether the same be disposed of by the will or — 368 — not, and it becomes his duty, as such administrator with the will annexed, to settle the estate and distribute the same in the manner prescribed bylaw. Seesubd. 6,sec. 3935, E. S. The executor, after'he knew that the widow had elected not to take under the will of her husband, became her trustee as.to her share of the personal estate, and must be held to an honest discharge of his duties as such trustee. This interest of the widow is assignable in her life-time, and she may bequeath it by will. Sullings v. Richmond, 13 Allen, 277; Wigley v. Beauchamp, 51 Mo. 544; Greiner’s Appeal, 103 Pa. St. 89; Moore v. Gordon, 24 Iowa, 158, 162; Reynolds’ Adm'rs v. Reynolds' Distributees, 11 Ala. 1023; Thomas v. Dumas, 30 Ala. 83; Hayward v. Hayward, 20 Pick. 519. Under the evidence in this case the executor, as trustee for the estate of the widow, obtains from the court, without establishing his right b.y evidence, without even calling the attention of thp court to the fact that some one was making a claim adverse to his rights to a- part of the estate, an order transferring this trust estate to himself, under a claim that he is the rightful owner. Had he stated to the court that there was an honest claim made bjr this respondent to the one-third of the estate in his hands, and that she had no notice in fact of his demand for the order of distribution of that third to himself and his brother in derogation of her rights, it seems to us evident that the court should and would have directed him to give,her personal notice of his application, so that she could have appeared and asserted her right if she had any. The wrong of the executor consists in the fact that while he held property in his hands as a trustee for the respondent, he took a proceeding in court with the purpose of depriving his cestui que trust of her rights. He did this without any actual notice to her, without even informing the court of her rights, and having good reason to know that she was in fact ignorant of his proceedings. Such action by a trustee cannot — 369 — be sustained by any court. "We think, under the evidence in this case, the executor was as much a trustee in the law of the one-third of this estate after the order of distribution had been made as he was before. If it be necessary for the respondent, under the circumstances, to give any reason for not appearing before the county court and there making her claim, we think the evidence shows a sufficient reason. That this order of distribution ought to be set aside as fraudulently obtained is amply sustained by the following authorities, cited in the brief of the respondent: Davis v. Cowdin, 20 Pick. 510; Foster v. Fifield, 20 Pick. 67; Leach v. Leach, 65 Wis. 284, 294; Campbell v. Reed, 24 Pa. St. 498; Clyce v. Anderson, 49 Mo. 40; Nickerson v. Bowly, 8 Met. 428; Pulliam v. Pulliam, 10 Fed. Rep. 26; Loring v. Steineman, 1 Met. 204; Arnold v. Spates, 65 Iowa, 570; Baker v. O'Riordan, 65 Cal. 368; Sullivan v. Andoe, 6 Fed. Rep. 641; O'Neil's Appeal, 55 Conn. 409; 2 Pom. Eq. Jur. secs. 1052, 1058, 1077. That the respondent was guilty of any laches after she was advised as to what had been done by the executor in obtaining an order distributing the whole estate to the appellants, we think is clearlj’- negatived by the evidence. The evidence shows that she at once took legal advice in regard to the matter, and pressed the commencement of the proceedings upon her counsel from the commencement. If there was any unnecessary delay it must be laid at the door of her attorney and not to her. We think that the appellants were not prejudiced by the delay in this matter. Eothing has been done with the estate since the order of distribution which has in any way altered the relations of the parties or prejudiced the rights of the appellants. We think the circuit court was right in holding that the respondent had not forfeited her rights by unnecessary delay in; commencing this action. It is also claimed by the learned counsel for the appel — 370 — lants that the respondent is estopped from claiming that part of the estate which was bequeathed to' her by her grandmother, which came to the grandmother from' ¡her deceased husband, Harvey L. Kimberly. It is insisted that because the respondent, Mrs. Beem, was a legatee in ^he will of Harvey L. Kimberly in the sum of $1,000, and received such legacy from the executor of said deceased before the widow made her election to take what the law gave her, instead of taking under the will, she cannot now, as against the other legatees in the will, take any of the estate of said deceased which came to her by bequest or descent from her grandmother, the widow of said Harvey .L. Kimberly. We are clearly of the opinion that there is no rule of law which will deprive the respondent from taking and holding the property bequeathed to her by her grandmother. The bequest made to her by Harveyí L. Kimberly is in no way connected with her claim to the estate of her grandmother. The grandmother does not derive the estate from anjr bequest in the will of Harvey L. Kimberly, nor from any other person taking under the will, but she took it as an estate given to her by the laws of the state, in hostility to the expressed desire of her husband that she should take a different estate in his property. When the widow filed her notice that she refused to take under the will, she took the one-third of the personal estate of her husband by a legal title superior to anj^ right of her deceased husband or to any claim that the other legatees in' the will might have to it. The property went to her as her absolute estate, and that estate was an absolute estate which she could sell, assign, or bequeath as freely as any other owner. She had all the incidents of ownership which any other owner of property has. She could do with it as she pleased. The rule that one taking a benefit under a will cannot contest the title of some other person to property which has been devised or bequeathed to such other — 371 — person by the same will does not apply to the person who claims property derivatively from some person not taking-title thereto under such will. This was decided as long ago as 1797. by the court of chancery in England, and that decision has been received as the true doctrine in the English courts down to the present time. Earl of Darlington v. Pulteney, and Lady Cavan v. Pulteney, 3 Ves. Jr. 384. This case was referred to as good law in the cases of Grissell v. Swinhoe, L. R. 7 Eq. 291, and Cooper v. Cooper, L. R. 7 H. L. 53, 59, 69, 79, L. R. 6 Ch. 19-21. In the case of Earl of Darlington v. Pulteney, supra, the Lord Chancellor said “ that when Mrs. Pulteney made her election, which the court decreed she was bound to do, and the result was that she took under the will of Sir William Pultene}7, the estate she so took was completely evicted, and never could revert to the uses of the will or be affected by any of clause of that will. The rights of all those taking that estate must be derived in some degree from her right, which was an absolute right of property,— a right to say, ‘ This is my estate. It was not capable of being devised by General Pulteney. I repudiate all right he has given me by his will, and take that estatejure meo as the law gives it to me.’ The consequence is she may do with it as she pleases, and all the rights incident to her estate must be preserved. Her husband’s estate is an emanation from hers. . . . That estate was as much blotted out of the will as if the testator had himself struck completely out of it all that regards that estate. We have no right to open the will, or talk of what General Pulteney did with regard to that estate, the moment an absolute owner says: ‘It is my estate. I have made my election to take it.’ ” The facts in that case are very much like the .facts in the case at bar. In that case the husband, Gen. Pulteney, and his wife were both mentioned as beneficiaries in a will in — 372 — which the testator attempted to devise to other parties an estate in fee, in which the wife had an estate in tail hostile to the provisions of the will. The wife elected not to take any benefits under the will, but to hold her estate in tail to the lands attempted to be disposed of by the will to other parties. The husband took the provision made for him by the will. Afterwards his wife died, and he claimed the right as tenant by curtesy of his wife to the same estate which the testator had attempted to dispose of by his wfill. The intended beneficiaries under the will claimed that he, having received the provision made for him. by the will, could not hold the estate of his wife as a tenant by the curtesy. The court held he could hold such estate, mainly because he derived the estate from his Avife, \\rho had elected to take it instead of the provisions made for her by the Avill. It is substantially this case. Here the respondent and the deceased grandmother were named as beneficiaries under the will of Harvey L. Kimberly. The grandmother renounced her rights under the will, and claimed the estate which the laAV gave her. The respondent took her $1,000 legacy. Aftenvards the grandmother and widoAV died and bequeathed the estate she had in her husband’s property to the respondent. As was said by the learned English chancellor, when the Avidow elected to take what the law gave her instead of the provision made for her in the will, so far as all rights of parties mentioned in the will Avere concerned it Avas the same as though the testator had himself stricken out of the Avill the provision made therein for his Avife. Had the will of Harvey L. Kimberly made no provision whatever for his Avife, no one, I suppose, would argue that a beneficiary under such will might not receive the benefits of the Avill, and aftenvards take, by descent, assignment, or bequest, the estate of the wkIoaau See, also, upon this subject, 2 Jarm. Wills, 5, note 3; Horton v. Mer — 373 — cier, 31 Ga. 225; Carder v. Commissioners, 16 Ohio St. 353; Crostwaight v. Hutchinson, 2 Bibb, 408; Bowen v. Bowen, 34 Ohio St. 164. It is said by the- learned counsel for the appellants that Mrs. Beem could nqt believe that Harvey L. Kimberly would have given her and her husband together $3,000, if he could have foreseen that she would claim to share the residue with his sons. It is, however, very plain that he did bequeath her that sum, knowing that his widow had the right to claim absolutely one third of his estate, and that, having made such. claim, she would have the lawful right to dispose of it as she saw fit; and there can be no claim that, because the widow refused to take the provisions made for her, the bequest to Mrs. Beem and her husband was avoided. Knowing the rights of his wife, if the testator intended to limit his bount\r to his wife’s granddaughter upon the condition that his wife accept the provision for her in the will, it would have been an easy thing for him to have said so in his will. ITe failed to say so, and the fact that the widow did not choose to take under the will in no way affects the right of the respondent to her $1,000. The deceased could not know, neither could the respondent know, that she would be benefited by the election of the wife and widow to take what the law gave her rather than the provision in the will. It appears to us that she stands in the same relation to the action of her grandmother that any other legatee who was in no way related to the widow would stand. The testator having given the respondent $1,000 by his will, with full knowledge that she would be entitled to receive it 'whether his widow accepted the provisions of the will made by him for her, or whether she took the one-third of his estate which the law gave her, it cannot be said such gift was intended as any compensation to her for her release of some possible right which she might afterwards acquire to that part of his estate which — 374 — came ,fo the widow by law and not by the will. There being no intention on the part of the testator to limit the right of the respondent as to her $1,000 legacy on thejcon-dition that all the residue of his estate should go to his Two sons, no case for an election is made out. Beall v. Schley, 2 Gill, 181, 199. The will of Harvey L. Kimberly presented no case for an election by the respondent. At the time the will was made, and at the time it took effect, she had no more interest in any of the property devised and bequeathed by the testator to his two sons than any other stranger. She had nothing in that property to release, and so could release nothing by taking her legacy under the will. See 2 Story’s Eq. Jur. §§ 1075, 1076, and cases cited; Havens v. Sackett, 15 N. Y. 365, 369; Jarm. Wills, 385. We think no case can be found in which it has been held that a legatee or devisee in a will cannot take and hold, any other property attempted to be devised or bequeathed by the testator in the same will to some other person when such legatee does not make a subsequent claim to such other property by virtue of some title in himself at the time the will takes effect, or unless he has entered into the possession of such property, claiming to make such entry by virtue of a title given to him. by the will before making any adverse claim thereto. This exception was made in the case of Stump v. Findlay, 2 Rawle, 168, 174, cited by the learned counsel for the appellants. All that was decided in that case was that a devisee of a life-estate in land, when the remainder was given by the same will to other persons, could not, after entry as life-tenant under the will, dispute the title of the remainder-man named in the same will, and that a purchase by theltenant of the life-estate of an adverse title, while in the possession of such life-estate under the will, would inure to the benefit of his life-estate, and also to the benefit of the persons entitled to the remainder under the will. — 375 — It is said that it was error to charge the costs to one of the defendants. In equity cases the question of costs is very much in the discretion of the court. The appellant against whom the costs in this case were charged by the circuit court was the party especially chargeable with the wrong done in this case. It does not seem inequitable, therefore, that he should be charged with the costs of the proceeding. By the Court.— The judgment of the circuit court is affirmed.