Ludington v. Patton

MaRsiialx, J. Tbe questions raised on this appeal must be •solved by tbe mandate of tbis court upon tbe former appeal. 111 Wis. 260, 86 N. W. 511. Tbe function of tbe trial court in tbe rendition of tbe present judgment was limited -strictly to tbe execution of sucli mandate; therefore, no extended discussion of legal questions or citation of authorities need or will be indulged in in rendering this opinion, nor will any attempt be made to determine tbe meaning of tbe mandate by rules for judicial construction, it being supposed that resort to such rules is unnecessary. Tbe course which tbe trial court was directed to take after tbe determination of tbe former appeal was carefully fenced about, and the general features plainly pointed out. Mere details were of •course omitted, as is usual. In stating tbe account as to tbe homestead in which plaintiff bad a contingent interest as to tbe wbole, and otherwise .a dower interest, tbe entire expense of keeping up tbe insurance was charged to her. ■ That was not warranted by the mandate. In plain language it provided for restoring plaintiff to precisely tbe same situation she would have occupied bad she made her election to take tbe interest in her husband’s estate which belonged to her by law and seasonably been put in possession and enjoyment thereof, she to be •charged with tbe legitimate expenses that would have belonged to her to pay if tbe trustees bad rightfully cared for her property as trustees of an express trust. That included Insurance, of course, but only tbe reasonable cost of protecting her insurable interest, which was limited to tbe value of ber contingent and dower rights. Hartford F. Ins. Co. v. Haas, 87 Ky. 531, 9 S. W. 720; Home Ins. Co. v. Field, 42 Ill. App. 392. Whether in determining tbe mesne profits of realty in assessing tbe damages for tbe wrongful detention •of dower interest or in stating an account between a life tenant and a remainderman, insurance as well as taxes and costs — 656 — of repairs should he deducted from the gross income, we do not deem necessary or proper to decide. So the rule on the subject, to be deduced from Hart v. Hart, 117 Wis. 639, 91 N. W. 890; Bonner v. Peterson, 44 Ill. 253, 261; Welsh v. London Assur. Corp. 151 Pa. St. 607, 617, 25 Atl. 142; Peck v. Sherwood, 56 N. Y. 615; and Harrison v. Pepper, 116 Mass. 288, 44 N. E. 222, cited to our attention, is not material. The rule for this case was settled upon the former appeal. The error in not limiting the insurance expense chargeable to plaintiff on account of her interest in the homestead to such proportion of the total expense of insuring the property as the value of her interest then bore to the entire value, must be corrected. In adjusting plaintiff’s rights as to other insurable real property than the homestead, the referee charged her one third of the expense thereof. That is not in accordance with the mandate for the reason above stated. If plaintiff’s interest in the realty had been assigned to her seasonably after her husband’s death, she would have received a full third of the rents and profits thereof and been obliged to pay the same proportion of the taxes and repairs. Pier insurable interest would have been limited, manifestly, to the value of her life estate in one third of the property, and, obviously, by the terms of the mandate, that is the limit of credit allowance to the trustees in that regard. In stating the account as to the so-called Broadway property, the value of the use of plaintiff’s one-third interest in the unimproved land was determined upon the basis of her having such an interest in the land improved as would be equal to a one-third interest therein unimproved. The entire income from the property was divided accordingly, and plaintiff was charged with a like proportion of the insurance. Complaint is made of that, on the theory that it requires plaintiff to bear a part of the insurance on the improvements, while her interest was in the land only. An examination of — 657 — the referee’s reasons for proceeding as be did satisfies ns that such was not his intention. He acted upon the theory that by the improvement of the realty a profit as to the ground was produced, while otherwise it would have been unproductive; and, as the trustees were to be treated as other fiduciaries in that they were not to be permitted to make a profit off their cestui que trust, they were charged with the value of the use of the realty to them, the idea being that the value of such use was the total rent received less insurance, taxes, and repairs. The net rent was apportioned between the value of the realty separate from the improvements, and the value of the improvements, and one third of the former was granted to plaintiff. Plaintiff’s counsel do not appear to have objected to the general method adopted for determining the value of the ground rent. It seems clear that, if the method adopted is to stand, the treatment of the insurance matter is a proper part of it. It is quite likely that the referee adopted such method because under the mandate the trustees were not allowed to make a profit off of plaintiff’s property, which they might have done, probably would have done, if they had been charged merely with ground rent, the amount thereof being established in the usual way. Complaint is made because of the treatment of a $4,500 mortgage on property in Chicago, in which plaintiff was entitled to a one-seventh interest under the mandate of this court. There seems to have been but one legitimate way to deal with that, unless plaintiff consented to be a party to the efforts of the trastees to realize thereon otherwise than by enforcing the securities in the ordinary way; and that was to charge the trustees with one seventh of the value of such securities as of the time plaintiff’s interest therein should have come to her in the regular course of the administration of her husband’s estate. The mandate expressly provided for plaintiff’s having the property which would have so come to her in specie, or its equivalent in money. That language — 658 — was plainly used to tlie end that plaintiff might secure property of the estate as the same existed at the time of the death of her husband, so far as practicable, and that otherwise an equivalent in money might he rendered to her, thus putting her in the same position she would have occupied had she received the property when it should have reached her in the due course of the settlement of her husband’s estate. Proof ought to have been made of the value of the $4,500 mortgage at the close of the executorship period and one seventh thereof charged to the trustees at that time, the same to bear interest thereafter with other funds held by the trustees, belonging to the plaintiff, down to the final closing of the account. In stating the account, yearly payments to the plaintiff were deducted from the principal sum due her at the time she received such payment, though there was accrued interest out of which the same might have been paid in whole or in part. That was a departure from the command of the mandate awarding to the plaintiff the'benefits that would have come to her had she taken regularly under the statute and as of the time such benefits would in that event have reached her in possession, and requiring her to account for money or property received by her, and “as of the time of the receipt thereof.” The language of the mandate in respect thereto seems to us entirely unambiguous. The words “as of the time” plainly indicate that plaintiff was to be allowed interest from the time she should have received the principal of her property had she taken under the statute. In no other way, it seems, can effect be given to such words. All payments made to the plaintiff should have been charged to her as of the time they were made, with interest on each such payment from the date thereof to the closing of the account; and all payments that should have been made to her but were not, should have been charged to the trustees as of the date they should have been rendered to her, and with interest upon each — 659 — ■sum from tbe date of tbe charge down to tbe closing of tbe account. Complaint is made on tbe part of tbe trustees because interest was allowed plaintiff on tbe $10,678.17 found due ber at the end of tbe executorship period, on account of certain matters, from such end to tbe closing of tbe account, and also allowed ber interest upon tbe balance between what was paid and what should have been paid to ber for each year, down to such closing. We observe nothing wrong in that by which defendants can reasonably be said to have been prejudiced. So far as tbe court went in that regard tbe result is in harmony with tbe previous mandate, though, as before indicated, tbe method of stating tbe account as regards interest was improper. Tbe referee held that from and after tbe entry of tbe judgment plaintiff was entitled to a one-third interest in tbe Broadway property as improved, and, in harmony therewith and tbe finding that such interest could not be set off by metes and bounds, tbe judgment assigned to ber one third of tbe rents, issues, and profits of tbe property to be received by ber as tenant in common with tbe other owners according to sec. 3871, Stats. 1898. Tbe learned referee and tbe court seem to have recognized that plaintiff bad no such interest in tbe property in fact, that ber interest was limited to one third of tbe use of tbe real estate aside from tbe value created by tbe expenditure of money thereon by tbe other owners, such use to terminate with ber life; but concluded as indicated, since, as said by tbe referee, “there is no way under our statute of making'any other allotment or admeasurement, and in tbe absence of such statute an attempt to decree a future interest would be wholly uncertain as to such parties and would be on a shifting basis.” Tbe court adopted that view. Both court and referee seem to have overlooked tbe fact that tbe mandate •of this court, not any statute, or any supposed difficulty at — 660 — tending the enjoyment by plaintiff of ber property in tbe future; was tbe guide to be followed in determining wbat interest therein should be awarded to ber. Though tbe mandate provided that plaintiff “must have all tbe benefits that would have come to ber in case she bad elected to take under tbe statute,” whether such benefits should be in the form of estate property in specie, or an equivalent therefor, was left as a matter of detail to be worked out by tbe trial court, tbe inference plainly being that where realty was found to be in tbe possession of tbe trustees so circumstanced that plaintiff’-s dower interest therein could be assigned to ber substantially tbe same as it could have been originally, that course would be taken, and in case of realty sold by tbe trustees or so changed by them as to render it impracticable to so assign dower to ber, she should be awarded an equivalent in money upon tbe same basis that dower rights are computed and paid in case of a sale of realty and a division of tbe proceeds where partition can only be made in that way. It was said in tbe opinion, in effect, .that tbe judgment would not necessarily restore to plaintiff property in specie in all cases, but would so bear upon tbe trustees in personam as to compel them to do justice to ber at all points. In tbe light of that feature of tbe opinion, as well as others, tbe mandate in its terms, and in spirit throughout, indicates plainly that plaintiff should have restored to ber property in specie where that can be done justly, and otherwise that she should have an equivalent thereof in money. .If some guide, outside tbe mandate of this court, were needed for dealing with the Broadway property, it could well have been found, and in harmony with such mandate, by referring to cb. 123, Stats. 1898, which provides that in case a person in possession of land, bolding adversely by color of title asserted in good faith, makes improvements, and subsequently is judicially found to be wrongfully possessed thereof, tbe interest of the true owner is to be limited to tbe — 661 — value of the laud less the improvements. While there was relicvable fraud in this case, there was no actual bad faith in the sense the term is used in such chapter. Eor that reason this court provided that the trustees in some respects should be treated as having rights, as regards plaintiff, of trustees of an express trust. If a further guide was needed in the matter under discussion, it could have been found, in harmony with the mandate of this court, in ch. 134, Stats. 1898, which provides that on a sale of land for the purpose of partitioning the same, if it is impracticable to rpake partition in any other way, any vested dower interest involved may be extinguished by the sale, and in lieu thereof payment be made to the dowress of a sum equivalent to her interest in the land fixed according to principles of law applicable to annuities, she consenting to such payment; otherwise, by investing one third of the entire proceeds of the land for her benefit for life. Further guidance in harmony with such mandate could have been found in sec. 2116, Stats. 1898, which plainly indicates a legislative policy that in any event a dower right is not to be regarded as reaching beyond one third of the annual mesne profits of the property involved, as the same existed at the time the right becomes vested, with such increase thereof as springs from natural causes. In the case at hand the proper way to have treated the matter was to have valued the realty as of the time of the accounting, less the improvements made thereon by the trustees, and to have awarded to plaintiff, for her interest therein, the value of her dower right according to the principles of law applicable to annuities. The learned counsel for plaintiff endeavored to justify the judgment awarding plaintiff a dower interest in the improvements placed on the Broadway property by the trustees, after according to her one seventh of the cost of such improvements, by referring to the ancient rule that if the heirs, after the death of the husband, improve the real estate of which — 662 — lie died seised and its value is thereby increased, the widow will be entitled to ber dower of the land so improved, without any' allowance to the heirs on account of the expenditures, citing 1 Washb. Real Prop. (6th ed.) 476; 2 Kerr, Eeal Prop. § 1007; and Powell v. Monson & B. Mfg. Co. 3 Mason, 376. In that counsel seems to have fallen into the same error as that committed by the learned court, of going outside the mandate of this court to find support for the judgment, while tested thereby it must be condemned. How can an award to plaintiff of a one-third interest for life in property as improved, from and after the date of the judgment, be justified, when at such date it included a large sum of money treated in another part of the account as personal property in which the plaintiff was entitled to share equally with the heirs of Mr. Ludington? The mere statement of the question shows the utter absurdity of the proposition. Certainly, no such injustice to the heirs was contemplated by this court in framing the mandate upon the former appeal, nor can be .found therein. The foregoing covers the propositions submitted on plaintiff’s appeal. ■ Between January 1, 1883, and the death of Mr. Luding-ton, he furnished his children various sums of money, charging the same to them upon his books in the form of loans. Defendants claim that such apparent indebtedness constitutes advancements and should have been treated as such, instead of as part of the assets of the estate, in which plaintiff was entitled to share on an equal basis with Mr. Ludington’s children. The will contained this language, following the provision as regards the distribution of the testator’s estate: “In such division no advancement or gift to any of my children prior to January 1st, 1883, is to be considered or taken into account, but all sums advanced and charged by me to either of my children since January 1st, 1883, are to be deemed advancements to said child and to he taken into ac — 663 — count in such distribution. In case of any partial distribution of my estate among my children, my executors and trustees are authorized to deduct any advancements to any child in instalments, as they may deem just, so that none of them shall be deprived of a fair annual income for his or her support.” Counsel for defendants claim that such language characterized the accounts in question as advancements under sec. 3959, Stats. 1898, which reads as follows: “All gifts and grants shall be deemed to have been made in advancement if they are expressed in the gift or grant to be so made or if charged in writing by the intestate as an advancement or acknowledged in writing as such by the child or other descendant. If the value of the estate so advanced shall be expressed in the conveyance or in the charge thereof made by~the intestate or in the acknowledgment of the party receiving it such value shall govern in the division and distribution of the estate; otherwise it shall be estimated according to its value when given, as nearly as the same can be ascertained.” We cannot adopt that contention. The statute is mandatory and must be enforced as written. Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430. It clearly contemplates that a delivery of property by one to another, the latter having claims upon the former’s bounty, is not to be deemed an advancement unless it is given that character at the time of such delivery, either by a declaration in the writing making the bestowal, or by an acknowledgement in writing at that time by the recipient of the bounty, or by an expression of the donor in respect to the matter in charging the property to the person receiving the same. It needs no argument to show that the accounts in question are not thus characterized by the reference thereto in the will, the making of which was in no way directly connected therewith. The trial court rightly treated the accounts as assets of the estate to be treated the same as other property in making the division between the heirs and the plaintiff. — 664 — Points made by defendants’ counsel as to tbe $4,500 mortgage on property in Chicago', heretofore referred to, are sufficiently answered by what has been said on plaintiff’s appeal. Defendants’ counsel suggest that the mandate of this court did not contemplate that plaintiff would be awarded for her dower interest a legal estate in the lands of which her husband died seised. What has already been said sufficiently answers that proposition. The plain purport of the mandate, as before indicated, is that plaintiff should be awarded in specie all property she would hare received had she seasonably elected to 'take under the statute, where that is practicable; but where it is otherwise, by reason of the way the property has been handled by the trustees, she should have an equivalent. A further point is made that interest was not charged to plaintiff upon the money received by her during the execu-torship period over and above her widow’s allowances. That seems to be well taken, and strictly within the letter of the mandate. The language thereof, “she must account for all money she has received and as of the time of the receipt thereof,” covers the matter. There can be no very good, reason for mistaking the import thereof. All sums of money •given to plaintiff prior to the decision of this court upon the former appeal, over and above what she was entitled to for allowances during the settlement of the estate, should have been regarded, in stating the account, as at interest against her, the same as money in the hands of the trustees, which she should have had, was to be regarded at interest in her favor. Counsel for plaintiff answer that by saying: By not charging plaintiff on sums she received during the executor-ship period over and above her widow’s allowances, she was simply treated the same as the heirs, since large sums of money were paid to them during such period and no interest was charged thereon. "What would be the general re665 suit of following tbe mandate strictly as regards tbis matter, we do not know. It provides that interest shall be both charged and credited, and of course it must be followed. In the division of the property, if the general plan of the accounting is to stand as regards considering the period the property was handled by the executors separate from the time they handled the same as trustees, — and no serious objection seems to be taken to that on either side, — interest should be in effect charged against each of the seven parties upon all sums received during such period from the date of the receipt thereof to the end of such period, this not to include the amount which belonged to plaintiff as her widow’s allowances during the settlement of the estate. The foregoing covers all the points that need attention upon either appeal. The result is that judgment must be reversed so far as it awarded to plaintiff a dower interest in the Broadway property, and so far as relates to the statement of the account whereby it was found that there was due plaintiff, June 1, 1903, $69,856.34, and the cause be remanded for a restatement of the account in accordance with the previous mandate of this court and as pointed out herein. To the end that no room may be left for future mistakes in the matter, and to the end that upon the promulgation of this decision this litigation may be brought to a speedy determination, these specific directions are given as to the manner of stating the account: 1. Treat the estate as an entirety, not breaking the same up into parcels and stating an account for each, further than to preserve the referee’s classification and findings as to the amount chargeable to the trustees each year for plaintiff’s interest as to each class, so far as the same are consistent with this opinion. 2. Continue the plan of treating the executorship period by itself, striking a balance at the end thereof and computing interest thereon down to the closing of the account. — 666 — 3. Treat as verities the various amounts found chargeable to the trustees for plaintiff’s interests in the estate for each year as to each class of property, as indicated in the finding, except as the same need modification to correct errors in respect to insurance matters, payments made to the plaintiff for any year not to be deducted from her credits till the closing of the account, as hereafter indicated. 4. Construct the account for the executorship period ending January 1, 1893, by charging the trustees as of that date $10,678.17 as per finding 1; $335.02 on account of the Broadway property as per finding 2; $12,811.44 with interest at the legal rate from October 1, 1891, to January 1, 1893, as per finding 3; plaintiff’s part of the mesne profits of realty treated in finding number 5, down to January 1, 1893; one third of the value of the mortgage mentioned in finding 8 as of January 1, 1893; $927 on account of income from the homestead as per finding 9; and so on through all the findings. Having gathered into the account all items to be debited to the trustees down to January 1, 1893, in manner aforesaid, including plaintiff’s interest in the mortgage mentioned, make such additional charges to the trustees as may be necessary to correct the insurance matters in accordance with the opinion, to such date. Credit the trustees with all payments made to plaintiff during the executorship period in excess of her widow’s allowances, with interest thereon from the date of the payments respectively, to January 1st, aforesaid. Add to such interest interest on all sums paid to the Ludington heirs during such period from the dates of the payments respectively to January 1st aforesaid, and charge the trustees with one seventh of the aggregate thereof. Make such further charges to the trustees and credits to them as may be necessary to bring the account down to the end of the executorship period, and make the balance thereof the first item in the final statement, charging the trustees therewith and with legal interest from January 1, 1893, down to the closing of the account. — 667 — 5. Having done as indicated, charge the trustees each year subsequent to the executorship period with the various amounts belonging to the plaintiff for each such year, according to the findings as corrected in respect 'to insurance matters, and as of the date in each year when the same would have ordinarily been realized by plaintiff in possession had she controlled her property, and charge them with legal interest on each of such amounts from the date of the payment thereof down to the closing of the account. 6. Credit the trustees with all sums for which plaintiff should account according to the findings, not involved in the foregoing, with interest on each item from the time of the payment thereof to the date of closing the account. 7. Value pláintiff’s dower interest in the Broadway property as of the date of closing the account in respect thereto as per finding No. 2, and charge the same to the trustees as of that date, with interest thereafter to the date of the final closing of the account. The account between plaintiff and the trustees, constructed in manner aforesaid, will substantially show the amount she is entitled to in money in accordance with the previous mandate. To such balance interest from the date of closing the account to that of the final judgment, should be added to the costs, pursuant to sec. 2922, Stats. 1898. If the record were sufficiently full to enable us to do so, we would relieve counsel and the trial court from the labor of restating the account and would modify the judgment heretofore entered, in ae-cordance with this opinion, so as to now end this litigation. However, it is thought that with the directions given the parties interested can, without judicial aid, complete the matter ready for the final decree, though it will be left open for such assistance, if necessary, including the tating of further testimony if that be found essential. ' By the Court. — The money judgment in plaintiff’s favor, and that part of the judgment awarding her a one-third interest for life in the Broadway property, are reversed. The — 668 — order confirming the. referee’s report, so far as inconsistent with this opinion, is reversed. The canse is remanded with directions to restate the account between the plaintiff and the trustees, as indicated in the opinion, the latter to be charged with the money value of the former’s interest in the $4,500 mortgage and her dower interest in the Broadway property, with interest, as therein indicated, and to enter an amended judgment embodying that part of the former judgment not disturbed upon these appeals, and the result of the new accounting. The judgment appealed from, so far as inconsistent herewith is reversed upon both appeals, and so far as consistent herewith is affirmed upon both appeals. No costs will be allowed in this court to either party. Each will pay the clerk’s fees upon one appeal.