Turner v. Scheiber , 89 Wis. 1 ( 1894 )

Winslow, <T.

The plaintiff’s first contention is that under the law as it existed at the time of Cole’s death in 1864 tbe homestead could not be devised so as to affect the widow’s right. This contention cannot be maintained. The homestead was a part of the husband’s real property, and could be treated by him as his own property, except as his rights of disposal were taken away by statute. The law bad not, in 1864, attempted to prevent the husband from devising bis homestead by will. On the contrary, ch. 270, Laws of 1864, which then governed tbe disposition of homesteads after the death of the owner, expressly recognizes and affirms the right of the owner of a homestead to dispose of it by will. Sec. 1 of that act says, “ Any homestead which shall have been heretofore disposed of by the last will and testament of the owner thereof, or which shall hereafter be disposed of by the last will and testament of the owner thereof, shall descend to the legatee or legatees in said will named,” etc. Such seems also to be the law now. Will of Root, 81 Wis. 263-268; R. S. secs. 2271, 2277, 2280. If the homestead may be devised, such devise may unquestionably be charged with conditions such as the payment of legacies or debts. Such conditions or charges plainly do not conflict with the provision that the homestead shall pass to the devisee free from claims against the testator. The power to charge it with conditions is a necessary part of the power to devise. Whether legislation is not needed to more effectually preserve the rights of the widow and children in the homestead is a question properly for the legislature and not for us.

But it is said that the dower interest, at least, of Frances Cole in the land has not been been cut off. Neither is this contention tenable. We regard the condition attached to the devise in trust, that the devisee shall give a sufficient bond for the support of the widow during her life, when followed by acceptance and filing of such bond as in this case, and also, as appears by strong inference at least, by performance of the conditions of the bond, as a provision made for the widow under sec. 18, ch. 89, R. S. 1858, which deprived her of dower unless she commenced proceedings for the assignment of her dower within a year after the probate of the will, as provided by sec. 19 of said ch. 89. She commenced no such proceedings. Therefore, she must be held to have elected to accept the provision made by the ■will. The conclusion from these considerations is that the widow had no estate in the lands, either by way of homestead or dower, after a year had elapsed after the probate of the will.

As to Harry Dickerman there seems to be no escape from tbe conclusion that bis 'rights, if he had any, are effectually barred by several statutes of limitation. He became of age in 1882, and at that time the land was adversely occupied by the defendants’ grantors, claiming under the executor’s deed. He had five years after coming of age in which to bring his action, and, not having done so, is barred under sec. 3918, R. S. He seems also to be barred under the general statute of limitations. Secs. 4215, 4218, R. S.

Objections were made by plaintiff to the taxation of nearly all items of the bills of costs. On a motion to review the taxation, the decision of the clerk was affirmed. The motion to review failed to point out in what respect the plaintiff was aggrieved by the action of the clerk, as required by Circuit Court Rule XXXIII. The motion, therefore, was insufficient and brought nothing before the court.

By the Qov/rt.— Judgment affirmed.