Steele v. Korn

SiebeckeR, J. The exception to the court’s ruling on de-' fendant’s demurrer to the complaint upon the ground that it [56] appeared that there was a defect of parties defendant to the action need not he considered, since he consented to the dismissal of the action as to Alice Korn and to making Florence Korn a party defendant. The imposition of $10 costs as a condition of answering furnished no basis for complaint. The imposition of terms was proper under the circumstances. Furthermore, it appears that the appellant participated in the proceedings and the trial to the extent of offering his evidence and of presenting his claims to the court by counsel. This practically afforded him the same privileges as if he had served an answer denying the right to judgment of foreclosure as rendered by the court. Appellant contends that the court erred in awarding judgment against him personally for the amount of plaintiff’s legacy and in making the interest he acquired in the real . estate under his father’s will primarily liable for payment of this legacy. In the action of Korn v. Friz, 128 Wis. 428, 107 N. W. 659, it was determined that the appellant in the instant action took the real estate devised to him upon the condition that he pay to testator’s daughter, the plaintiff in this action, the sum of $5,000, and that she had the right to a lien or charge for that amount upon the land devised to appellant, which could be enforced against the land. It appears that appellant has taken possession of this property under the will devising it to him. The result is as stated in Merton v. O’Brien, 117 Wis. 437, 94 N. W. 340: “By accepting the devise, and taking possession thereof under the devise, he doubtless became personally liable to pay the charge thereon when it became payable by law. [Oit-ing cases.] Ilis situation, then, was that he owned real property subject to a lien thereon, which he had agreed to pay, and which might be foreclosed and enforced at any time after it fell due.” The holding of the trial court is to this effect, and it rendered judgment against appellant for. the amount of the. legacy he thus agreed to pay, and, in default of such pay [57] ment, awarded judgment of foreclosure and sale of bis interest in tbe premises, and, if appellant’s interest in tbe lands should fail to sell for a sum sufficient to discharge tbe plaintiffs demand, then tbe judgment of foreclosure and sale was against tbe interests of all those owning tbe land. There is no question but that tbe plaintiff is entitled to have tbe lands sold under foreclosure judgment. Korn v. Friz, 128 Wis. 428, 107 N. W. 659. Tbe will devised tbe real estate to appellant for life, with remainder over to bis issue, and, if he should leave no issue, then tbe remainder over was devised to the testator’s grandchildren who might be living at tbe time ■ of William's death. This limited appellant’s interest to bis life. It is apparent that appellant’s estate in this land will, in all probability, sell for a meager sum on account of its uncertain duration, and for tbe same reason a separate sale of the estate in remainder will probably fail to bring a reasonably fair price. Tbe selling of these interests separately will operate to tbe injury of all parties interested in tbe land. Tbe trial court found that tbe salé of tbe premises as a whole would be to tbe advantage and best interest of all parties. Under tbe circumstances presented tbe court must adopt tbe course which, in freeing tbe property from tbe lien of tbe plaintiff, will least threaten loss to tbe estates and which will promote tbe interests of all tbe owners. “To accomplish this result tbe interests in remainder are to be preserved, as nearly as the circumstances will permit, as tbe creator of them has provided,” and, if this cannot be effected by selling a part of tbe real estate, then tbe whole may be converted into its equivalent in money and dealt with in this form as realty. In re Kingston’s Estate, 130 Wis. 560, 110 N. W. 417; Ruggles v. Tyson, 104 Wis. 500, 79 N. W. 766, 81 N. W. 367. Under these circumstances it is manifest that a sale of tbe whole property in fee simple will operate to tbe advantage of all tbe owners. Tbe value of appellant’s [58] life estate in the whole proceeds may readily be ascertained under the rules for computing the value of such estates, and it may be taken out of the selling price of the whole estate and applied in payment of plaintiff’s judgment. If there be a balance over and above the amount required to satisfy the judgment, such balance should be paid to him as absolute owner thereof. In the event that the amount found to be the value of appellant’s life estate is insufficient to satisfy plaintiff’s judgment, then a sum which, when added to the life estate, will be sufficient to satisfy the judgment must be taken out of the estate in remainder. Whatever estate in remainder is not required to satisfy the judgment must be placed in charge of a trustee to administer and hold for accumulation for the persons entitled thereto at the time of the death of appellant, the life tenant. In view of these considerations the judgment entered by the trial court is erroneous and must be reversed, and the cause remanded to the trial court with directions to enter judgment upon the record in accord with this opinion. By the Court. — It is so ordered. The following opinion was filed March 9, 1909: SiebecKee, J". The appellant moves for a correction of the record, which in effect states that the will of Henry Korn, deceased, devised the property in question to William Korn for life, with remainder over to his issue; that William Korn’s interest is limited to a life estate, and that after his .death the property is devised to his issue then living. The case of Korn v. Friz, 128 Wis. 428, 107 N. W. 659, discloses that in deciding the question then presented the court regarded the interest of William Korn in the real estate devised to him by his father, Henry Korn, deceased, as a fee, determinable at his death if he should die without issue, and [59] considered that a determination of the nature and quality of his estate was necessarily involved in the question then presented. It was declared to be a “base fee.” As between the parties, the decision then made must be regarded as the-law of the case, and it cannot be changed on this appeal. In a statement of the opinion in the instant case the estate devised by the will of Henry Korn, deceased, to his son William is referred to as a life estate with remainder over to his children. In view of the former decision in Korn v. Friz, supra, this is erroneous and must be so regarded.When the question of William’s interest in this real estate under his father’s will has been passed upon by this'court, that decision, whether right or wrong, becomes the law of the case and binds the parties. Cole v. Clarke, 3 Wis. 323. This condition of the record in no way affects the correctness of the decision on this appeal and does not call for a modification of the mandate. It is to be understood that whenever William Korns interest is referred to in the record, such an interest is meant as the case of Korn v. Friz, supra, holds that he acquired. By Che Court. — The motion is denied. No motion costs-are to be taxed against either party.