Buth v. Davis

Rosenberry, J. The appellant assigns as error, first, the finding by which the agreement between the respondent and Ada G. Johnson was established, and second, the conclusion of law that the daughter, the petitioner, and respondent here, is entitled to the insurance money. It is further urged on behalf of the appellant that if the claim in question is a valid and proper one it was not filed within the time limited by law and is therefore barred by sec. 3844, Stats. If the right of the respondent depends upon the contract alleged and found to have been made between the daughter and widow of Charles Johnson, the point of the statute of limitations seems to be well taken. Under such circumstances the liability of the administrator, if any, must be by virtue of a claim against the estate of-Ada G. Johnson. The respondent contends, however, that she is entitled to recover for the reason that it was the duty of Ada G. John [251] son, being in possession as the owner of a life estate in the property, to insure the same; that she did insure the property against loss by fire, and that the proceeds of such insurance belong to her as remainderman, or, at best, that the title of the insured was in the nature of a trust for the benefit of the remainderman and funds must be devoted to the restoration of the building. It is well established that the widow and the heirs are tenants in common until assignment of dower. Wooster v. Hunts Lyman Iron Co. 38 Conn. 256; Montague v. Selb, 106 Ill. 49; Knolls v. Barnhart, 71 N. Y. 474. Prior to the assignment of her dower a widow has no vested freehold estate. Farnsworth v. Cole, 42 Wis. 403; Howe v. McGivern, 25 Wis. 525. The parol agreement between the parties could not affect the nature of the interest which Ada G. Johnson had in the real estate, which was an unassigned and unadmeasured dower interest. Therefore, down to the time of the death of Ada G. Johnson the petitioner and Ada G. John:,* ¡i > cniained tenants in common of the premises. Not being the owner of a life estate, that part of the brief of counsel devoted to the question of the duties and liabilities of a life tenant to the remainderman becomes immaterial. At the time the contract of insurance was entered into Ada G. Johnson had an insurable interest in the property. The evidence in the case is very meager, but it would appear that the property was indivisible. She had a right, therefore, to one third of the rents and profits of the property during the term of her natural life. Against the loss of the use of the property she had a right to insure. The extent of this interest -at the time the contract of insurance was entered into, as w$ll as the extent of her interest at the time when the loss, if any, might accrue, was readily ascertainable under established rules of law. The policy was therefore issued upon the; whole property and covered the respective interests of the owners as their, interests might appear. She took out the [252] contract of insurance, and the contract was as to her, therefore, fully performed, and no facts are alleged showing any breach of the contract on her part. Therefore no claim can be made against the estate by reason of the contract into which she entered, which results in the conclusion that there was no need to file a claim. The administrator having received the money, the proceeding is one to establish the interest of the respective parties to the fund. On behalf of the appellant it was contended that the county court had no jurisdiction to entertain such a proceeding. “Sec. 2443. The jurisdiction of the county court shall extend to .. . all matters relating to the settlement of the estates of such deceased persons and of such minors.” Manifestly the estate in this case could not be settled until the title to the fund in his hands was ascertained. It came rightfully into his possession as administrator. It is an action to charge him as trustee with a fund rightfully in his possession as administrator of the estate of the deceased. We think within the doctrine of Wisdom v. Wisdom, 155 Wis. 434, 145 N. W. 126, the county court was authorized to take jurisdiction of this proceeding. Whether or not its jurisdiction was exclusive we do not determine. The thing insured against, so far as the deceased was concerned, was a loss of her interest in the property. That of necessity must be measured by the extent of her interest in the property at the time the loss accrues. In this case, she having died in the fire which destroyed the premises, she had, when the loss accrued, no interest. The entire fund, therefore, belonged to the respondent, I. P. Davis. By the Court. — Judgment affirmed.