Giblin v. Giblin

VtNjE, J. The facts found by the court as briefly outlined in the above statement are not in dispute except in so far as they may allege conclusions, and they sustain the result reachéd as to adverse possession for reasons stated in Hahn v. Keith, 170 Wis. 524, 174 N. W. 551, and in cases there cited. That case rules this as to the question of adverse possession against tenants in common. We have here a case where for thirty-five years the mother, with full knowledge of all the facts, living in a near-by city^-, made no claim in her lifetime for an accounting or a share in the property or its rentals, and her children for fifteen years more remained silent as to any claim on their part. During all that time Alice managed, used, and improved the property, claiming it as her own to the exclusion of Margaret and her chil [636] dren. It is peculiarly a case where acts speak more effectively than words. Title by adverse possession is founded upon the salutary principle that claims, if not seasonably made, will be held to be waived. The_ law allows twenty years for the making of such claims. Here fifty years and more have elapsed since the}’ first ripened through the death of James IT. Broder in 1867, if he in fact held the equitable as well as the legal title at the time he died — a fact not shown by the testimony. Plaintiff also makes claim as the heir of Catherine and Mary on the ground that no delivery of the deeds from them and Ann Mallams to Alice is shown. The evidence discloses that after the death of Alice these deeds were found in a basket in a bedroom closet in the house in which Alice, Catherine, Mary, and Ann Mallams lived. The basket contained other valuable papers belonging to Alice. The only evidence claiming to rebut the presumption of delivery is that given by Ann Mallams, who makes no claim to any of the property except under the will of Alice, to the effect that she, Mary, and Catherine could have gone to the basket at any time had they desired, but that she did not meddle with Alice’s papers and she presumed her sisters did not meddle either. The presumption of delivery of deeds found in the possession of a deceased person is not rebutted by showing that the grantors had access to the place where the grantee kept them, for evidence necessary to rebut the prima facie effect of the grantee’s possession must be clear and satisfactory. Chase v. Woodruff, 133 Wis. 555, 113 N. W. 973. If there has been an actual delivery of a deed — and possession thereof by the grantee presumes that there has, — then the fact that the grantor has access to the place where the grantee keeps it is immaterial. Indeed, the grantee may redeliver it to the grantor for safe keeping without affecting the validity of the delivery. So we conclude that there was a valid delivery of the deeds from Catherine and Mary to Alice. The deeds recite a consideration, are under seal, and in [637] the absence of evidence that there was no consideration one is presumed. The fact that Ann Mallams did not know whether there was a consideration does not disprove the presumption that there was one. Alice Broder died testate and her estate is being probated in the county court of Rock county. Certain devises in her will are challenged on the part of plaintiff, who claims they are invalid and therefore she takes as heir. These devises are subject to a life estate in Ann Mattains. Since the special jurisdiction of county courts for the construction of wills does not supersede or suspend that of circuit courts (Burnham v. Norton, 100 Wis. 8, 75 N. W. 304), since áll the parties are before us and all the evidence is here, we shall briefly discuss and determine the construction to be given to the will of Alice Broder in so far as it affects the questions raised by the partition action. The first devise challenged is of one lot to Bishop Muldoon of Rockford, Illinois, or to his successor in office. It reads: “I give and devise unto the Right Reverend Bishop Mui-do on, of Rockford, Illinois, or his successor in office, the following real estate [describing it], with power to sell and dispose of the same and to use the proceeds thereof for the purpose of establishing a church in South Beloit, Illinois, said church to go by the name of St. Peter and St. James Catholic Church.” Bishop Muldoon has in writing accepted the devise and agreed to carry out its object. It is argued that the devise violates the rule against per-petuities as declared in sec. 2039, Stats. How it does is not pointed out and we are unable to discover its invalidity in that respect. The devise expressly empowers the devisee to' sell at any time after the devise takes effect, and the object of the devise is sufficiently certain and definite to permit execution. The fact that the new church was not in being at the time the devise was made does not invalidate the gift. The [638] gift was to Bishop Muldoon, not to the new church. So there was a definite devisee in being capable of taking at the time the will was made. It is shown by the evidence that the Bishop has the power to create new churches and his acceptance of the trust implies that he will create the one mentioned in the devise. The next two devises challenged are: “I give and devise lot number four (4) in Flackett’s Addition to Beloit, Rock county, Wisconsin, according to the recorded plat thereof, unto the St. Paul’s Roman Catholic Church of Beloit, Wisconsin, with power to sell and convey the same and use the proceeds thereof for church purposes,” and “I give, devise and bequeath unto the St. Paul’s Roman Catholic Church of Beloit, Wisconsin, the mortgage which I now hold against the said church.” The claim that the first devise violates sec. 2039, Stats., is as unfounded as the claim that the devise previously considered violated it. It appears from the evidence that there was no corporation by the name designated in the devise, but that there was a corporation named St. Paul’s Roman Catholic Congregation of Beloit and that it was the mortgagor of the mortgage mentioned in the second devise. This without other evidence sufficiently designates the devisee. It was also in evidence that there was only One St. Paul’s Catholic congregation in Beloit. No one did or could mistake who was intended to take, so the claim that the devise is void for lack of definiteness fails. The last devise we shall discuss is one reading: “I give and bequeath unto Marquette University of Milwaukee that part of lot 4, block 60, . . . upon condition, however, that the said Marquette University shall agree to take charge of my tomb situate in Beloit city cemetery, keep the same in repair, and pa}' all lawful charges, assessments, and expenses against the same for all time.” It is urged this created a perpetual trust and that Marquette University cannot accept such a trust. We shall not [639] inquire into the question of whether or not it can accept a perpetual trust for the reason that none is created by the devise. It is a devise with a condition, and the condition has been agreed to in writing by the University. No trust is created. The property devised may be sold without being burdened with the condition. That remains the individual agreement of Marquette University, to be enforced in case of a breach like any other individual obligation. The devise comes within the principle discussed in State Historical Society v. Foster, 172 Wis. 155, 177 N. W. 16, being one subject to a condition but creating no trust. There the taking by plaintiff was held to be subject to the payment of an annuity to Mrs. Burrows but creating no trust to be executed on the part of plaintiff. . Since the devises attacked by plaintiff are held to be valid, it becomes unnecessary to determine the validity of the residuary clause in the will. By the Court. — Judgment affirmed. Rosenberry, J., dissents.