Evans v. Kemp

Dodge, J. The appellant contends that he was entitled to recover all of the personal property left by the deceased, Sarah Xemp, for the reason that by her husband’s will she was given only the right to support out of the income of his property, and that all accumulations thereof must revert at the time of her death, and that the property which she had at the time of her decease had been acquired with the proceeds and accumulations of property left by him. This being an action for specific articles, and not for an accounting or to charge the estate of the deceased with misconduct by her as a trustee or an executor, it might well be disposed of upon failure of proof that any specific article, always excepting the Bennett note, had been acquired exclusively with moneys of her husband’s estate, income of her own having been mingled" therewith. Bromley v. C., C., C. & St. L. R. Co. 103 Wis. 562; Nonotuck S. Co. v. Flanders, 87 Wis. 237; Burnham v. Barth, 89 Wis. 362. But, independently of this ground, we have no doubt that the construction given to the will by the circuit court was the correct one. It is apparent from the intrinsic evidence that the will was prepared by an illiterate person. It, in terms, first gives an absolute life estate in all property, and the additional language used does not evince any purpose to curtail this gift, but, rather, to add to it. We think it apparent that the thought in the mind of the testator was simply to amplify the giving of the actual personal property by declaring that he intended, also, the enjoyment of the income thereof. A purpose such as the appellant con [91] tends for — of providing for tbe widow’s support, and retaining to bis estate whatever was not needed therefor — would almost inevitably have involved authority to the widow to use of the principal as well as of the income; but, clearly, no such grant is made by the will, and we think no such scheme was in his mind. Again, if the testator had actually in contemplation the accumulation of a fund from the income to enhance and increase his estate, it is hardly conceivable that such purpose should not have been evinced in the donation to the remaindermen, which, however, is confined to “my estate.” We think this expression, which is the same used to describe what is given for life to the widow, would not have been used had he meant them to share not only in the estate which he left at his death but in any accumulations of income thereof which might arise in the hands of his widow. We draw that inference partly from the evidences of inaccurate and uncertain understanding of the meaning of terms apparent throughout the will, and feel sure that neither the testator nor the scrivener would have felt safe to rely on the expression “ my estate ” to indicate what might thereafter be accumulated by the widow. Erom this conclusion it necessarily results that none of the specific assets coming to the defendant from his testatrix, and described in the complaint, except the John Bennett security, belonged specifically to the estate of Joseph Kemp, deceased. None of them had had existence during his lifetime, and none of them came to the widow from him. The plaintiff could not properly, therefore, recover in this action anything but the Bennett note and mortgage. It is, however, undoubtedly true that the estate of Sarah Kemp would have been liable for the principal of the $3,100 worth of securities collected by her, in some form of procedure; and, as the defendant raises no objection to the fact that recovery therefor is allowed in this suit, the judgment need [92] not be reversed for that reason. Inasmuch as the plaintiff was entitled to-recover nothing but the Bennett note, the judgment, so far as it gives him anything else, is in excess of his rights, and not prejudicial to him, and therefore cannot be successfully assailed by him. Waterhouse v. Freeman, 13 Wis. 339; Smith v. Hoyt, 14 Wis. 252; Dousman v. Wis. & L. S. M. & S. Co. 40 Wis. 418. On the question of costs, however, the judgment is erroneous. Plaintiff, in an action at law, recovered judgment responsive to his complaint, to the amount qf $1,000. His right to costs is conferred by statute (sec. 2918, Stats. 1898), and the court had no discretion on the subject. The fact that the court included in the judgment some further relief as to other property, perhaps equitable in its character, cannot deprive plaintiff of his statutory rights. The judgment should be modified so as to award plaintiff costs, to be taxed under the statute. In this court appellant will recover as costs only fees of the clerk of this court, and $25 for printing. By the Cotvrt. — Judgment modified so as to award plaintiff taxable costs in circuit court, and, as so modified, it is affirmed.