Hovely v. Herrick

Siebeckeb, J. Tbe trial court beld that under the two paragraphs of the will above quoted the testator’s widow took a life estate in the lands owned by Michael Weibel, deceased, and located in Monroe county, Wisconsin, and that his children, named in the will, took the fee thereto, subject to the life estate of their mother. It is claimed by the respondents that the trial court’s interpretation of the will to this effect was erroneous and that the testator intended and did grant to his widow a life estate in such lands, and that the provision to “use and dispose of same according to her best judgment” granted her the power to dispose of the fee during her lifetime, and hence that the conveyances here involved vested a fee in the defendants. The intent of the testator must be gathered from the whole will. Looking at the whole instrument, does it appear that the deceased intended to grant his widow the power to dispose of the fee in the lands devised ? The language of the second paragraph of the will cannot be regarded as controlling in getting at the testator’s intention as to what he devised to his widow, because the clause immediately following bears on this question, and the context must be given its ordinary meaning in connection with what precedes, for it clearly refers to the same lands as are mentioned in the preceding clause. Reading the two paragraphs together and giving the words full effect and harmonizing their meaning as nearly as the language permit's, it is manifest that the testator intended to give his widow a life estate and that he intended to give his children the fee to his lands. This is indicated' by the language of the third paragraph, whereby he gives to his children “all the property hereinbe-fore described” and wills that it “shall be equally divided among my children,” naming them, “or their heirs, forever.” The meaning of this language is plain, and he obviously intended thereby to devise the lands he owned to his children. Since he had this in mind, it must be deemed he intended this object to control that which he had in mind when he gave [16] all bis real estate and personal property to bis wife “to bave and to bold during ber natural life, use and dispose of same according to ber best judgment,” and tbis clause must be controlled by tbe following paragraph, under wbicb tbe designated children are given tbe fee, subject to tbe widow’s life estate. Under such conditions, tbe words “use and dispose of same” could not confer tbe power to dispose of tbe fee, and tbe widow possessed no power additional to that which tbe law confers on a life tenant to transfer ber life estate. Tbe following cases in tbis court bave fully established tbe effect of such provisions in wills as are here before us: Jones v. Jones, 66 Wis. 310, 28 N. W. 177; Knox v. Knox, 59 Wis. 172, 18 N. W. 155; Littlewood’s Will, 96 Wis. 608, 71 N. W. 1047; Auer v. Brown, 121 Wis. 115, 71 N. W. 1047; Otjen v. Frohbach, 148 Wis. 301, 134 N. W. 832; Perkinson v. Clarke, 135 Wis. 584, 116 N. W. 229. Tbe last case, as reported, stating that tbe will created a life estate, in tbe husband, with power of sale, and vested tbe remainder in tbe children, must be read with reference to tbe words actually used in tbe will, wbicb devised a life estate to tbe husband with power to dispose of tbe fee as be saw fit, and directed that such of tbe testator’s estate as remained upon tbe decease of ber husband should descend to ber children, and when so read it shows that tbe word “remainder,” as used in tbe reported case, refers to that portion of tbe property which was left after tbe husband’s death. Tbe court found as a fact that' all tbe children of Michael Weibel living at tbe time of tbe transfers of tbe lands and tbe heirs of deceased children who bave reached their majority, bad received and now retain their shares of tbe purchase price paid for these lands, with present-knowledge that' tbe same was in consideration of a conveyance of tbe fee and that such purchase price amounted to tbe reasonable market value of tbe premises. Tbis finding of fact is assailed as not sup [17] ported by the evidence. An examination of the record shows that this contention is correct. There is no evidence in the case tending to show that the children of Michael Weibel received their shares of the purchase price paid for a conveyance of the fee of these lands, except the child Magdalena Fry. This state of the record necessitates a reversal of the judgment which was awarded upon this unwarranted finding of fact. The record discloses, however, that Magdalena Fry received several sums of money as her share of the purchase money paid for a conveyance of the fee of these premises, and that she now retains the same. The circuit court correctly found this fact as to her, and properly held her estopped from also claiming the right to recover her interest under her father’s will in these premises. She must be held to know that she had no interest in the proceeds of a sale of her mother’s life estate, and that what she received of the proceeds for her interest in the lands was her share of the purchase price of her fee interest which she acquired under her father’s will. It would be highly inequitable to permit her to retain the amounts she thus received and also to allow her to recover her interest in the lands, for which, under the record, she has received and now retains a full consideration. Such an inequity the law will not permit, and her conduct in the matter operates to estop her from now laying claim to the lands, upon the ground that she cannot accept and retain the benefit of a transfer of her interest in the lands and repudiate the transfer. Her acceptance and retention of these moneys from the purchasers, who honestly believed they had acquired a fee in the lands for. the money they have thus parted with, amounts to an acquiescence in the purchasers’ claim to the interests. Her conduct in effect is a declaration that she has elected to hold the deeds from her mother to be valid in consideration of the amount paid her, and she is therefore estopped, in a contest with the grantees [18] and their successors, from repudiating the transfers. Deford v. Mercer, 24 Iowa, 118; Byars v. Spencer, 101 Ill. 429; Padfield v. Pierce, 72 Ill. 500; Lee v. Gardiner, 26 Miss. 521; Two Rivers Mfg. Co. v. Day, 102 Wis. 328, 78 N. W. 440; Bigelow, Estoppel (5th ed.) p. 683, sec. 2, “Inconsistent positions generally.” We are persuaded that the court was justified in its con-elusion on the evidence that Magdalena Fry is estopped from prosecuting these actions to recover whatever interests she acquired to these lands under her father’s will, but there is no evidence in the record sustaining the court’s finding that any other of the testator’s children or their heirs have received and retain the proceeds of a sale of their interests in this real estate. Why this question of fact was not tried out as to the other beneficiaries under the testator’s will is not explained by the record. The evidence of Magdalena Fry on this subject was not' received until after the parties had rested their case. It is manifest that the importance of this question was not appreciated while the evidence was being adduced, and hence that it received but slight attention. In the light of the record and the situation of the parties, we deem it necessary, to the end that the rights of the parties may be fully protected, to order a new trial in these cases. If the parties are enabled to produce additional material evidence tending to show that any other of the devisees or their heirs are estopped from prosecuting these actions, they shall have the right to offer such evidence and retry that question, and the court may then make it's findings of fact upon all the evidence in the cases and render its decision thereon. By the Court. — The judgments are reversed, and the causes remanded for further proceedings as indicated in the opinion.