Estate of Hemphill

Keewht, J. Counsel for appellant raises a preliminary question to the effect that the petition herein should have been dismissed, and further, on the merits, claims that the accounting'of the court below is erroneous in several particulars which will be briefly considered. 1. On the point that the petition of the administrator of Katharine Hemphill, deceased, should have been dismissed, counsel for appellant cites sees. 2089 and 4253, Stats., and, as we understand the argument, it is insisted that the claim for an accounting did not survive. We think the contention of counsel under this head cannot be sustained, and that the court below was right in denying the motion to dismiss. 2. It is insisted that the court erred in crediting the estate of Katharine Hemphill with rents from the farm for the year 1903-4, on the ground that, a lease for that year having been made by John Hemphill before his death and notes — 336 — taken for the rent, such notes became assets of his estate and did not pass to the widow nnder the devise and bequest of rents and profits from the farm. And it is further insisted that under the will the widow did not get a life estate in all the rents from the farm, hut only such portion thereof as was necessary for her support and maintenance. We cannot agree with counsel in this contention. The will upon its face is quite specific, and it appears therefrom that the deceased intended that his widow should have all the rents from the farm during her life subject to the charges therein made. The will provides: “After the payment of my just debts and funeral expenses I give, devise and bequeath to my wife, Katharine Hemphill, the rent from my farm located in the town of Belmont, La Fayette county, Wisconsin, except two hundred and twenty-five and no/100 dollars ($225), which shall be anually paid out of said rent, one hundred dollars ($100) on the first of July and one hundred twenty-five and no/100 dollars ($125) on the first day of January of each year to Mrs. Elizabeth Hemphill, of Yan Wert, Van Wert county, Ohio, or to her legal agent, Mr. Peter Smith, of Yan Wert, Van Wert county, Ohio, or his legal successor as such agent, during the lifetime of said Mrs. Elizabeth Hemphill. The said Katharine L. Hemphill is to pay all taxes levied against said farm and other expenses necessary to be incurred for the maintaining of said farm in a good rentable condition, as long as my wife, Katharine L. Hemphill, lives.” The will further provides that after the death of Katharine Hemphill the farm should be sold by the executor and the proceeds divided in the manner therein specified. It further empowers the executor to convert any property which the testator might own at the time of his death into money and reinvest the proceeds, and further provides that the executor may, out of any money in his hands, pay to his wife, Katharine Hemphill, any sum that she may need “more than her share of the rent from the farm for her support and maintenance as to my said executor may seem necessary, and at — 337 — the death of my said wife both the residue of said money and credits is to he divided by said executor among my four sons above named, to wit: James Hemphill, Grant Hemphill, John J. Hemphill, and. Edward Hemphill, or their legal heirs, who are also to have all and any residue of my estate not otherwise disposed of herein.” Under these provisions it is insisted by counsel for appellant that only such portion of the rents as might be necessary for the support and maintenance of the widow should be paid to her by the executor, and that, since all of said rent had not been paid to her during her lifetime, the balance belongéd to the estate of John Hemphill. We do not think this the proper construction of the will. It seems quite clear from its terms that the testator intended to devise and bequeath to his widow all rents from said farm subject to the charges therein named, and that if any further sum were necessary for her support and maintenance, such sum should be provided for her by the executor1 out of the residue of the estate. Uor can we agree to the construction contended for by counsel respecting the first year’s rent. The mere fact that the testator in his lifetime leased the property for one year, 'namely, from March 1, 1903, to March 1, 1904, and took two notes of $450 each in payment of the rent, and died during the year, did not deprive his widow of the whole year’s rent. We think the first year’s rent should be apportioned between the estate of John Hemphill and the estate of Katharine Hemphill. John Hemphill having died June 17, 1903, the $900 rent should. be apportioned by allowing his estate $267.50, being rent at the rate of $900 a year from March 1, 1903, to the time of his death, and the balance, $632.50, to the estate of Katharine Hemphill. It is conceded that an error of $50 was made in crediting $950 for the first year’s rent instead of $900, so that under this head there should be deducted from the credits allowed Katharine Hemphill’s estate the sum of $267.50 plus $50, or $317.50. — 338 — 3. The court below, in settling the account of Grant Hemp-hill, charged him. with interest on balances of money in his hands covering the time he was acting as administrator or trustee. This is assigned as error on the ground that it amounted to charging him with simple and compound interest on moneys in his hands collected from rents belonging to the widow. The court below seems to have charged this interest on the theory that the administrator had in his hands, belonging to the estate of Katharine Hemphill, moneys which he used or received benefits from. Counsel for respondent cites us to pages of the record where they claim it appears that this money in the hands of Grant Hemphill had been invested at interest by him during the entire period and that he received interest at the rate of five per cent, per annum thereon. We fail to find evidence establishing this fact. True, on the pages referred to it appears that interest was collected on certain'notes, but this interest was charged to Grant Hemphill. It appears from the record that Grant Hemphill rendered annual accounts showing all items of receipts and disbursements and that he paid Katharine money whenever she called upon him for it, and in such amounts as she required, and that she was familiar with the accounts as rendered and was never refused money when she requested it and never demanded any balance. It also appears that Grant Hemphill was diligent in the performance of his trust in managing the projDerty of the widow and kept the farm well rented and produced a good income therefrom and diligently performed his duties in that regard. It is urged by counsel for appellant that under all the circumstances interest was improperly charged. The court below credited the estate of Katharine with interest at the rate of five per cent, upon various balances aggregating $328.50, a small portion of which sum is compound interest. It is at least doubtful whether the estate of Katharine should have been credited with any inter — 339 — est upon the facts disclosed by the evidence. 22 Cyc. 1485, 1504, 1542, 1544; O’Herrin v. Milwaukee Co. 67 Wis. 142, 30 N. W. 239. But in'view of the fact that the court below held that Grant Hemphill received five per cent, on the balances remaining in his hands, and this fact is not disputed by counsel for appellant so far as appears from the record, we are unable to say that this finding should be disturbed so far as simple interest is concerned. But it is clear that compound interest should not have been allowed. Martin v. Morris, 62 Wis. 418, 22 N. W. 525; Lynch v. Ryan, 137 Wis. 13, 118 N. W. 174. 4. The court below also credited the estate of Katharine Hemphill with $200, “widow’s allowance,” under sec. 3935, Stats., which provides that the widow shall be allowed the household furniture of the deceased, not exceeding in value $250, and “other personal property to be selected by her, not exceeding in value $200.” It does not appear from the record that this $200 allowance was ever selected or claimed by her during her lifetime, therefore it is contended it was error to allow it in the accounting. The contention of appellant seems to be supported by Resch v. Senn, 28 Wis. 286; Wilcox v. Matteson, 53 Wis. 23, 9 N. W. 814; 18 Cyc. 395; Tarbox v. Fisher, 50 Me. 236; Adams v. Adams, 10 Met. 170; Cox v. Brown, 5 Ired. L. 194; Kimball’s Adm’r v. Deming, 5 Ired. L. 418; Williams’s Appeal, 92 Pa. St. 69. It is urged by counsel for respondent that it must be presumed that this allowance was included in some of the payments made to the widow by Grant - Hemphill. There is nothing in the record, however, to raise any such inference. Obviously the court below included this amount in the credits on the theory that her estate was entitled to it as matter of right under the statute, notwithstanding she neither selected nor made claim to it during'her lifetime. In this conclusion we think the learned trial court was in error. 5. It is further insisted by appellant that the court erred — 340 — in not allowing compensation to Grant Hemphill as administrator or trustee of the John Hemphill estate in handling the rents from the farm. The learned trial court, as we understand the record, denied compensation on the ground that it should he paid out of the John Hemphill estate, and that Grant Hemphill was acting in his capacity as administrator up to the time that Katharine Hemphill died, not as trustee. It seems that in December, 1905, Grant Hemphill filed his final account as administrator and that a judgment was drawn up settling such account, but was never signed, and it is claimed on the part of the appellant that the judgment was declared by the county court, but through inadvertence remained unsigned, while on the part of the respondent it is claimed that there is no proof upon this point. It also appears in the printed case that a bond of Grant Hemphill as trustee, dated January 21, 1906,. was executed and filed, but respondent contends that these papers were not properly a part of the bill of exceptions. The trial judge states in the bill of exceptions that he is unable to say whether the unsigned judgment or bond of Grant Hemphill as trustee was put in evidence. However we do not regard the point very important, for the reason that so far as appears from the record there was nothing done by Grant Hemphill, after the time of the alleged filing of his final account as administrator, except what was done by him in managing the estate of Katharine Hemphill by way of renting the farm, keeping it in good rentable condition, collecting rents, etc., so that in that regard it would seem equitable and just, whether he was acting in the capacity of trustee or agent for Katharine Hemphill, that compensation should be paid him out of the funds which he was handling for her, and especially so in view of the fact that he was charged with interest upon all sums in his hands. We therefore conclude that the court erred in not allowing him compensation, and that he should be allowed all necessary expenses in the care, management, — 341 — and settlement of tlie life estate of Katharine Hemphill in the-farm and for his services $1.50 per day and commissions-upon the amount of the personal estate collected and accounted for by him as provided by sec. 3929, Stats. Counsel for respondent urge exceptions filed by them to certain findings of the court below respecting items credited to the administrator which they claim should not have been so credited. -We think the contention of counsel under this head is without merit. It therefore follows that there should he deducted from the judgment of the court below against Grant Hemphill $50,. admitted to be excess of rent for the first year; $267.50, the portion of the first year’s rent which the estate of John Hemp-hill was entitled to; $200 “widow’s allowance;” and the-amount of compound interest charged; also compensation of Grant Hemphill to he ascertained and determined according to the provisions of sec. 3929, Stats.; and that such further proof he taken in the court below as may be necessary to determine the amount of such compensation as above indicated.. By the Court. — The judgment of the court below is reversed, and the cause remanded for further proceedings in accordance with this opinion.