Appeal from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Decree affirmed.
On October 10, 1956, George Meier died leaving his daughter, Grace Hartman and Edward W. Meier, his son, his only heirs. His will, executed April 30, 1955, was duly admitted to probate and his son, Edward, appointed executor thereof.
The estate of George Meier consisted of farmland, a portion of which was located in Illinois and the rest in Wisconsin. He was also the owner of farm property such as hay, straw, hogs and cattle and also had a checking account and five certificates of deposit in various banking institutions. The inventory disclosed that the principal and accrued interest evidenced by these five certificates of deposit, and the checking account aggregated $15,995.30; that the land in Illinois was worth $30,000; the land in Wisconsin was worth $14,000 and the personal property on the farm was worth $5,117.57. These amounts aggregate $65,112.87.
The only provisions of decedent's will material to this proceeding are the following, viz:
"Seventh: I give, devise and bequeath to my daughter, Grace M. Hartman, the sum of Twenty Thousand and no/100 Dollars ($20,000) in cash as her absolute property forever, and do hereby make and declare said bequest a charge and lien upon all of my farm real and farm personal property until the same shall be fully paid to her with interest at five per cent (5%) per annum beginning six months after my death.
"Eighth: I give, devise and bequeath to my son, Edward W. Meier, all of my farm real estate and farm personalty, including farm machinery, tools, livestock, poultry, seed, feed and all crops growing and harvested subject to the lien of the aforesaid bequest to my said daughter, as his absolute property forever.
"Ninth: All of the rest, residue and remainder of my said estate and property, I give devise and bequeath to my said daughter and my said son, share and share alike, as their absolute property forever."
The instant complaint was filed by Grace Hartman on January 25, 1960, making her brother, Edward W. Meier, individually and as executor, a defendant. The complaint alleged that after the admission of this will to probate, Edward W. Meier, took possession of the farm devised to him and the farm property bequeathed to him and paid plaintiff $20,000 as directed in the seventh paragraph of said will; that thereafter defendant filed, in the probate court where the administration of decedent's estate was pending, a final report as executor; that this report disclosed that after the payment of funeral expenses, costs of administration, a specific bequest of $50 to a named cemetery association, and all claims and debts against the estate, that the executor had in his possession $10,468.09; that in said final report defendant charged said bequest of "$20,000 to the estate and property of said testator in such a manner as to deplete said residuary estate of $10,468.09."
The complaint then alleged that objections and exceptions to the final report of the executor were filed by plaintiff in the probate court and averred that that court took the position that it was without jurisdiction inasmuch as the report of the executor and the objections thereto presented matters requiring a construction of the will of George Meier, deceased. The complaint averred that plaintiff requested defendant to institute a proceeding of this character in the circuit court of Winnebago County but charged defendant declined to do so.
The defendant answered admitting many of the allegations of the complaint. The answer stated, however, that after paying the debts, funeral expenses, cost of administration, taxes and the specific legacy of $50 to the cemetery association, there remained in the hands of defendant, as executor, the sum of $10,468.09; that it was this sum, together with $9531.91 of his own money that defendant paid to his sister, in order to satisfy the $20,000 legacy bequeathed to her by the seventh paragraph of the will of decedent. The answer then avers that plaintiff was fully informed at the time the $20,000 was paid to her that he the defendant, in order to pay the same was using the residue of the estate amounting to $10,468.09, together with $9531.91 which he procured by placing a mortgage on the land devised to him.
The answer averred that plaintiff, upon receiving this payment of $20,000 executed and delivered to defendant quit claim deeds to the respective parcels of real estate devised to defendant and also executed a receipt and release of any charge or lien she may have acquired by virtue of the provisions of her father's will. The answer admitted that plaintiff had requested defendant to commence an action for the construction of decedent's will but he refused because he believed the will was clear, needed no construction and that it provide that plaintiff was to be paid her legacy to the extent that "the residue of the personal property in the estate would pay."
The issues made by the pleadings were submitted to the chancellor resulting in a decree finding that the testator bequeathed his daughter $20,000, and made the payment of the same a lien and charge on his farm and on the farm personal property; that testator devised to his son the farm and the farm personal property impressed with the lien of the bequest made to his daughter; that the son accepted said devise and paid to his sister $20,000; that this payment was made without the right to charge the same or any part thereof to the residuary estate until the assets, consisting of the farm and farm personal property, had been applied to the payment of said bequest.
The decree construed the seventh and eighth paragraphs of the will to mean that the bequest of $20,000 was impressed as a lien on all decedent's farm properties; that testator intended that this bequest to his daughter be satisfied out of his farm properties before said bequest could be charged to his residuary estate, and that his son, the defendant, was not to have the farm properties except as charged with the lien of said bequest to the plaintiff. The decree found that the plaintiff was not guilty of laches in bringing this suit and had never acquiesced in defendant's construction of her father's will. The decree found that the bequest to plaintiff had been paid but adjudged that defendant was without right to charge any part thereof to the residuary estate of decedent. To reverse this decree defendant appeals.
The contention of appellant is that the personal property of decedent constituted the primary fund for the payment of appellee's legacy; that after payment of the debts and claims against the estate of decedent together with the costs of administration and a small legacy of $50 there remained $10,468.09 with which to extinguish the bequest to appellee; that appellant added ...