Hannig v. Mueller

Cassoday, J. The findings of fact mentioned in the foregoing statement are fully sustained by the evidence. The deed from Carl and Elizabeth Mueller, and John E. W. Muéller and wife to Koenemann, and the deed from Koene-mann and wife back to John F. W. Mueller, and the bond or declaration of trust of John F. W. Mueller back to Carl and Elizabeth Mueller, each and all related to the same subject matter and were executed substantially at the same time, to wit, April 25, 1860, and for the same common purpose, and must, therefore, in determining the character of the transaction and the intention of the parties, be construed together as constituting one paper in law. Herbst v. Lowe, 65 Wis. 320; Winner v. Hoyt, 66 Wis. 234; Joy v. St. Louis, 138 U. S. 38. So construed, it is very obvious that said John F. W. Mueller took such title to the lands in question under an agreement thát the said Carl and Elizabeth should have the use, rents, and profits thereof during their lives, respectively, and that he should hold the same in trust, for the benefit of the children of the said Carl and Elizabeth Mueller, except Charles Gr., who had previously received his portion of his father’s estate. This express exception of the one repels any implied intention of excluding any of the other children of Carl and Elizabeth. Counsel for the plaintiffs frankly concede that both Carl and Elizabeth intended that the plaintiff Louise Hannig should be named in the bond, and for a long time be — 242 — lieved she was so named therein, but they insist that the testimony clearly shows that the trustee therein named did not so intend, but “ that he deliberately and intentionally caused the name of his daughter to be inserted in said bond, and the name of the plaintiff to be omitted therefrom.” If this is true, then it is a frank confession that such trustee deliberately and intentionally practiced a gross fraud' upon his father, mother, and sister, at the very inception of the trust, by surreptitiously inserting the name of his own daughter, and purposely excluding the name of his own sister. Whether a court of equity would ever be justified in establishing and confirming suqh a fraud is, to say the least, extremely doubtful. New York Mut. L. Co. v. Armstrong, 117 U. S. 591; Riggs v. Palmer, 115 N. Y. 506; Schreiner v. High Court of I. C. O. of F. 35 Ill. App. 576; In re Wilson, 8 Wis. 171; Will of Ladd, 60 Wis. 193. See, also, Owens v. Owens, 100 N. C. 240; Shellenberger v. Ransom, 31 Neb. 61. But the’ declaration of trust has not left the identity of the beneficiaries in doubt. They were not only to be the children of Carl and Elizabeth, but the property was to be equally divided or distributed among said children on the death of Carl and Elizabeth, “ according to the laws of the state of Wisconsin in such case made and provided, of a person dying intestate^ The plaintiff Louise was one of the children who would thus have taken by such intestacy. Besides, it was “ Eliza ” the “ {daughter) ” who was thus to take, arid not Eliza the granddaughter. By construing “ Eliza (daughter)” to mean Louise, the daughter of Carl and Elizabeth, we have the seven beneficiaries named, to correspond exactly with their seven children, after excluding Charles G. as mentioned,— and they are named in the order of their births, from the oldest to the youngest, — “ Eliza (daughter),” occupying the place where Louise should have been. Such construction may certainly be indulged to prevent disinheritance. Baker v. Estate of McLeod, 79 Wis. 543, 544. — 243 — As indicated, the two deeds and the declaration of trust¿ executed April 25, 1860, are to be construed together as one paper in law. Carl and Elizabeth Mueller thereby retained the right to the actual possession of the land in question, together with the right to receive the rents and profits thereof during their respective lives, and this gave them, under our statute, a legal estate therein of the same quality and duration and subject to the same conditions as their beneficial interest. Sec. 2073, R. S. By the three papers executed April 25, 1860, mentioned, Carl and Elizabeth Mueller, through lloenemann, conveyed their title and interest in said lands to John E. W. Mueller in trust for, or to the use of, their seven children therein named; and, since such trust was purely passive in its requirements, it is obvious that under our statute no estate or interest, legal or equitable, vested in such trustee, but passed directly to' the seven children of the said Carl and Elizabeth, as the beneficiaries therein. Sec. 2075, R. S. 1 White v. Fitzgerald, 19 Wis. 480; Goodrich v. Milwaukee, 24 Wis. 430; Ruth v. Oberbrunner, 40 Wis. 238; Smith v. Ford, 48 Wis. 133; Skinner v. James, 69 Wis. 610. Such being the nature of the estate created by the transaction of April 25, 1860, it is manifest that the legal title to the land in question thereupon became' vested in the seven children named, including the plaintiff Louise, as tenants in common, subject to the life estates of their father and mother mentioned. The plaintiff Louise continued to be such tenant in common with her brothers and sister and the defendants as their heirs at law, respectively, from that — 244 — time down to the time of her conveyance to the Joseph Schlitz Brewing Company, February 8, 1890. The result is that the plaintiff Louise was such tenant in common at the time she acquired the tax title of the premises in question, March 5, 1883;- and hence she could not take or hold the same adversely to the defendants as such cotenants. Smith v. Lewis, 20 Wis. 350; Jones v. Davis, 24 Wis. 229; Phelan v. Boylan, 25 Wis. 679; McMahan v. McGraw, 26 Wis. 614; Frentz v. Klotsch, 28 Wis. 312; Bennett v. Keehn, 61 Wis. 582; Newton v. Marshall, 62 Wis. 13; Burchard v. Roberts, 10 Wis. 118. Such acquisition of the tax title by the plaintiff Louise simply operated, as against the defendants, as a payment of the tax and an extinguishment of the tax title. By the Cowrt.— The judgment of the superior court of Milwaukee county is affirmed.