Kuener v. Prohl

Cassoday, C. .J. 1. It is contended on the part of the administrator de bonis non that Kuener’s claim is based upon the mere accommodation guaranty of the testator to answer-for the debt of another, and hence is not a debt, within the meaning of the clause of the will quoted. For the purposes of this appeal, we shall assume that it was a debt. The important question presented is whether it became a charge upon the homestead, or, in other words, upon the surplus arising upon the foreclosure sale of the homestead. The statute provides that: “Wien the owner of any homestead shall die not having lawfully devised the same, such homestead shall descend free of all judgments and claims against puch deceased owner, or his estate, except mortgages,” etc. Sec. 2271, Stats. 1898. The statute also “excepts the homestead of the deceased” from “the payment of his debts,” but provides that “if a testator shall malee provision by his will . . . for the payment of his debts . . . they shall be paid accordingly,” but that “no general direction in any will to pay the debts of the testator out of his-property shall subject the homestead to the payment thereof.” Sec. 3862, Id. The wdll in question does not attempt to make the debts of the testator a charge upon his homestead. It simply declares, in effect,, that, after his debts and funeral expenses have been paid, the491 personal property therein mentioned and the stun of $1,000 shall he given to the son Charles Jand the rest of his real and personal estate should be divided between his two sons, share and share alike. In the late ease of Pym v. Pym, 118 Wis. 662, 96 N. W. 429, the devise to the wife was “subject to the payment of debts, funeral expenses, and bequests,” but it was held that so much of the homestead as did not exceed one quarter of an acre was exempt from liability to creditors. This was on the ground that such language was a mere “general direction,” within the meaning of the statute quoted. Counsel for the appellant insists that the claim of Kuener is a charge upon the homestead, within the ruling of this court in Madden's Will, 104 Wis. 61, 65, 80 N. W. 100. In that case the testator gave and devised to his wife all his real and personal property, “to have and to hold the same during her life and at her death the said property to be” divided as follows : “One half of the real estate” to Phillip Madden, “without incumbrance;” then a legacy of $100 to a person named, and another legacy of $5 to another person named, and “tbe rest and residue after all debts are paid to Mary Ann Brown.” The homestead, which was incumbered, constituted substantially all the property of the testator. The county court authorized the sale of Mary Ann Brown’s interest to pay claims, but refused to allow the same for the expenses of administration, and such adjudication was affirmed by the circuit court. This court held that Mary Ann Brown’s interest was also chargeable with the expense of administration. The particular statute upon which this case turns was not referred to in the opinion in that case. Obviously the decision in that case is not an authority fot holding that Kuener's claim was a charge upon the homestead in question. Both courts properly held that it was not such charge. 2. The only claim to such surplus by the appellant Kmily Heyn is under and by virtue of the mortgage given to her by the son Albert O. upon all his right, title, and interest in the [492] homestead, and hence she has no greater right to such surplus than Albert 0. would have had if no such mortgage had been given. By the express terms of the will, the residue of the estate was only to be divided between the two sons, share and share alike, after the household goods and the $1,000 therein mentioned had been paid to the son Charles J. It will be observed that there is nothing in the clause of the statute last quoted to prevent legacies from being made a charge upon the homestead by a “general direction” in a will, as that clause of the statute only relates to the payment of debts of the testator. Both courts so held, and we perceive no reason for disturbing the judgment. By the Court. — The judgment of the circuit court is affirmed on both appeals.