Hinn v. Gersten

The following opinion was filed April 19, 1904: Marshall, J. The point is made that Gersten and Buchner had no right to appeal because they were not parties to the record in the court below. That they represent one sixth of the property in dispute, subject to the rights of Mrs. Gil-man’s creditors, sufficiently appears from the findings of the trial court. Tbe theory of appellants is that such creditors have no rights in the property, hence that Parker is the proper person representing the estate of Mr. Gilman to administer the same. Upon one aspect of the case the right of respondent depends upon whether the property must be considered estate of Mrs. Gilman as regards ber creditors. The judgment is adverse to all persons represented by Mr. Parker, among them Gersten and Buchner, therefore they are parties aggrieved by the decision though they are not parties to the record, and as such are entitled to appeal. Tbe supreme test of whether a person has a right to appeal to tbis court is whether he has a substantial adverse interest to the adjudica [226] tion sought to have reviewed, not whether he was a party as appears by the record of the trial. Rogers v. Shove, 98 Wis. 271, 73 N. W. 989; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909. It must be conceded that, so far as Mrs. G-ilinan left debts contracted for her “comfortable support and maintenance,” they are payable out of the property in question. It was incumbered to that extent by the terms of the agreement forming, with Mr. Gilman’s will, the basis of the assignment thereof to her. Since such debts were left by her, the administrator of her estate will be entitled to the possession of such property till it shall have been regularly assigned in the pourse of an orderly administration thereof. That will not admit of a reasonable controversy.' Mrs. Gilman possessed the undoubted right to incur indebtedness for her living expenses to any amount she thought reasonably necessary, payable out of the property in question. It must be presumed that those who extended credit to her did so on the faith of such right. Unquestionably they were entitled to payment out of such property during her lifetime. They must be held not to have lost that right by reason of her death. We cannot agree with the learned circuit judge’s conclusion that under the stipulation between Mrs. Gilman and her children she became the absolute owner of the property delivered to her. The terms thereof seem so plainly the other way as to leave no room for legitimate efforts to discover what was intended by applying to the language used rules for judicial construction. The agreement expressly provided that Mrs. Gilman should have the right to use all of the income of the property and so much of the principal thereof as may be necessary, “at her own pleasure and comfort,” but that otherwise the property should go as designed by the will of Mr. Gilman. It was assigned strictly in accordance therewith : a life interest to Mrs. Gilman with the privilege men [227] tioned, and the remainder to the heirs of Mr. Gilman as provided by bis will. Snob heirs, under the will and the agreement, possessed an estate in remainder just as effectually as she did a life estate. True, the agreement uses the words, “not to dispose of the same by will.” That language, however, rather confirms than weakens the idea that the parties contemplated at the end the property would -go to the re-maindermen through.a distribution in the settlement of Mrs. Gilman’s estate, such distribution to be according to the titles created by Mr. Gilman’s will, as modified by the parties interested. The term “not to dispose of the same by will” in any event cannot control the unmistakable meaning of the agreement that Mrs. Gilman should take a life estate only in the property, and that otherwise it was to go to her children in remainder under her husband’s will. It follows that, in any view that can be taken of this case, the judgment must be affirmed. No further administration of the estate of Mr. Gilman' is necessary or proper to enable his heirs to obtain whatever rights they possess in the property in question. They already have the title thereto and a right to the possession thereof subject to the rights of Mrs. Gilman’s creditors, and subject to the expenses of administering her estate. The administrator of her estate is entitled to such possession till all claims legitimately allowable therein and the expenses of the administration shall have been paid. The remainder will then be distributable to the persons whom Mr. Parker assumes to represent, as owners, under the assignment distributing the property pursuant to Mr. Gilman’s will. Proceedings for a further assignment of the property under such will are entirely unnecessary. The assignment already made exhausted the power of the court in that regard. The medium of a legal representative of Mr. Gilman is not necessary in order that the title to the property may reach such assignees. They already- have it, so far as [228] any proceeding in the settlement of Mr. Oilman’s estate could give it to them. By the Court. — The judgment is affirmed. The appellants moved for a rehearing, on the ground that in so far as the judgment of the circuit court determines that the property in question “belonged absolutely to Mrs. Gil-man at the time of her death,” the same should be reversed with costs. Tbe motion was denied June 10, 1904.