Opinion
December 4, 1940 —
January 7, 1941.
APPEAL from an order and judgment of the county court of Wood county: FRANK W. CALKINS, Judge. Reversed.
For the appellants there was a brief by Hooker Wagner of Waupun, and oral argument by E. W. Hooker.
For the respondents Garret Greeneway, Jr., and Annette Greeneway there was a brief by M. S. King of Wisconsin Rapids, and oral argument by Mr. King and by Mr. A. J. Crowns of Nekoosa.
Petition by Edward J. Vruwink and Cornelius Greeneway, executors of the estate of Garret Greeneway, Sr., deceased, to the county court of Wood county, dated June 3, 1940, for a construction of decedent's will and for instructions to them as executors. This was the second petition for a construction of the will. The first petition was made on April 26, 1939, in response to which, the court below on June 17, 1939, made findings of fact and conclusions of law, whereupon it entered judgment construing said will. Thereafter, on August 10, 1939, the court filed amended findings of fact and conclusions of law, upon which an amended judgment was entered. No appeal was taken from this judgment. The judgment construing the will for the second time was entered July 22, 1940, from which Mary Joling and Alice Loomans, beneficiaries under the will, bring this appeal.
Mr. Greeneway's last will and testament was admitted to probate by the county court of Wood county on June 21, 1938. He was survived by ten children, his sole heirs and beneficiaries. That part of the decedent's will, so far as here material, is printed in the margin. Several of the children were indebted to decedent at the time of his death, such indebtedness being evidenced either by note, mortgage, or land contract. The respondent, Garret Greeneway, Jr., and Annette Greeneway, his wife, were indebted to decedent at the time of his death in the sum of $8,700 as principal together with certain accrued interest on a land contract. The portion of the will set out in the margin is the only part thereof concerning which there is any controversy among the heirs of decedent.
". . . I direct that in arriving at the proportionate share of my estate which each of my legatees hereinbefore described shall receive there shall be taken into consideration the advances, if any, that I have made to any of said legatees and any indebtedness that may exist from said legatee to me, such advance and indebtedness to be counted against the share of such legatee in the form and manner hereinafter set forth. Where such advance or debt represents actual cash, whether evidenced in writing or not, the same shall be counted in full as to principal and with interest at 4 per cent per annum from and after the date of this my last will or the date of the advance or loan or note, whichever date shall be most recent, provided, however, that any payments made by any legatee either as to principal or interest made upon any existing or subsequent advance or indebtedness for which I have issued a receipt, such legatee shall receive appropriate credit. Where such advance or indebtedness to me represents a sale of land either outright or contingent or whether evidenced by note, mortgage or land contract, I direct that any such legatee's share shall be reduced by a sum arrived at as follows. The court having jurisdiction of the probate of this will shall determine for each year after the date of this will and up to the time of my death the fair value of the land represented by such transaction and reduce the same by any payments on principal for which I have issued receipts and upon the net amount annually compute interest at 4 per cent and unless such legatee has paid such interest to add the same to the unpaid principal at the time of my death and such total to be deducted from such legatee's share of my estate. I direct that in all computations of interest under this will where the interest remains unpaid it shall be compounded annually. I direct that should any of the foregoing deductions from any legatee's share exceed the amount of such share, then the same shall stand as a debt to my estate and shall be treated the same as any other indebtedness owing to me at the time of my death except that I authorize and empower, but do not require, my executors to defer and postpone by requiring payment of any such debt which may be owing to me at the time of my decease for such period as my executors shall see fit."
In its findings of August 10, 1939, in connection with the first construction of the will, the court found:
"(7) That the last will and testament of decedent as a whole, and also that portion thereof for which a construction is sought, is stated in clear and unambiguous language, and permits no reduction in the amount of the principal indebtedness due to the testator from either or any of his children, but that said will does permit a reduction in the interest on such indebtedness due to the decedent or his estate from and after the date of said will, which interest in the case of Garret Greeneway, Jr., is to be computed at four per cent per annum on the valuation of four thousand seven hundred dollars.
"(8) That Garret Greeneway, Jr., and Annette Greeneway, his wife, are indebted to said estate in the principal amount of eight' thousand seven hundred dollars, but that they are entitled to a refund of interest paid by them on the 30th day of December, 1936, and the 30th day of December, 1937, in excess of four per cent of four thousand seven hundred dollars on each said date and that the total amount of interest paid by them on said two dates was the sum of one thousand forty-four dollars, and that they are entitled to a refund thereon of the difference between one thousand forty-four dollars and three hundred seventy-six do, liars, or the sum of six hundred sixty-eight dollars less, however, interest at the rate of four per cent per annum on the sum of four thousand seven hundred dollars due on the 30th day of December, 1938, being the sum of one hundred eighty-eight dollars and making a net refund on it to Garret Greeneway, Jr., and Annette Greeneway, his wife, the sum of four hundred eighty dollars; that said Garret Greeneway, Jr., and Annette Greeneway, his wife, are further entitled to a refund of eighteen hundred dollars paid by them on or about the 1st day of February, 1939, under the erroneous assumption that they could procure a deed of said premises from the executors of said estate for that amount."
Judgment so construing the will was accordingly entered August 10, 1939. Among other provisions, it was ordered and adjudged:
"That there is now due upon the land contract executed between decedent and Garret Greeneway, Jr., and Annette Greeneway, his wife, on the 30th day of December, 1922, the sum of eight thousand seven hundred dollars together with interest on the sum of four thousand seven hundred dollars from and after the 30th day of December, 1938, at the rate of four per cent per annum, after making the refunds provided for in the foregoing paragraph, and that under the terms of the last will and testament of decedent, that the said sum of eight thousand seven hundred dollars together with all unpaid interest upon the sum of four thousand seven hundred dollars should be charged against the share of Garret Greeneway, Jr., as a legatee in the estate of Garret Greeneway, Sr., and that if the said sum of eight thousand seven hundred dollars and interest as aforesaid shall exceed the share of said Garret Greeneway, Jr., as such legatee, then that the excess thereof shall stand as a debt due to the estate of decedent to be treated as any other indebtedness owing to decedent at the time of his death, provided, however, that the executors of said estate, may in their discretion, defer and postpone the payment of such indebtedness for such reasonable period as the executors shall see fit."
On November 6, 1939, the executors applied to the court for an order to show cause directed to Garret Greeneway, Jr., and Annette Greeneway, his wife, to show cause why an order should not be entered directing that the order, judgment and decree as entered on August 10, 1939, should not be docketed as a money judgment against Garret Greeneway, Jr., and Annette Greeneway, his wife, in the office of the clerk of the circuit court for Wood county, to be enforced the same as any other money judgment, and that after said judgment has been so docketed, that said executors be instructed to credit thereon the sum of $2,200 (the estimated amount of Garret's distributive share) and to charge same in their accounts against the legacy of Garret Greeneway, Jr., and to pay over to Garret upon final settlement of the estate any excess there may be in the legacy over the sum of $2,200; that the executors be ordered to make and execute a good and sufficient executors' deed of the property described in the land contract conveying the same to Garret and his wife, Annette, and that said deed, when executed, be deposited with the court to be delivered to said grantees when the judgment so docketed has been fully satisfied of record; and that Garret and his wife be restrained from disposing of their property or assets so as to hinder or delay the collection of said judgment when so docketed.
Upon the hearing of this order to show cause, the court, on November 22, 1939, entered an order which provided: (1) That the relief prayed for by the executors, in the order to show cause, be denied; (2) that the order, judgment and decree of August 10, 1939, be interpreted and held to be an order and decree construing decedent's will and fixing the attorneys' fees and costs in connection with that proceeding only; (3) that the order, judgment and decree of August 10, 1939, does not order or decree a money judgment in favor of the executors against Garret and Annette Greeneway for any sum whatsoever; (4) that said order, judgment and decree cannot be docketed as a money judgment and that an execution cannot be issued thereon; and (5) that the executors are authorized and directed to take such proceedings as the law provides for the enforcement of the land contract.
It next appears that the executors, on June 3, 1940, filed in the county court, a petition in which, among other things, they pray for a construction of the will (the second construction) and for instructions as to their powers and duties under the will with respect to Garret's indebtedness. This petition was heard on June 24, 1940, and on July 22d the court filed its decision. It made no findings of fact other than as the decision may be considered as findings. On the same date, the court entered a decree construing the same provisions of decedent's will for the second time.
This latter judgment provides that testator, so, far as matters referred to in the petition are concerned, intended to dispose of his estate and did dispose of the same as follows, and that his last will and testament should be and hereby is construed to read in the following manner: (a) That the will does not give the farm to Garret and require the executors to collect from him the indebtedness due the estate on the land contract; (b) that it does not permit the executors to repossess the farm and exercise the grantor's option in the contract to declare it void and the payments made thereon as forfeited; (c) that it does require the executors to seek strict foreclosure of the land contract against Garret; that if Garret does not pay what he owes the estate, the only remedy is to get judgment of strict foreclosure with the usual provision of giving Garret thirty, sixty, or ninety days to pay up the total indebtedness, and if he does not pay the balance due in the time set by the court in the land-contract foreclosure action, the executors will take title to the farm and dispose of it before the estate can be closed; that if the executors get the farm back, they cannot charge anything else against Garret's share of the estate; (d) that since the will does no, t permit the executors to repossess the farm and to exercise the grantor's option in the contract to declare the same void and the payments already made as forfeited under the will, there is not any further indebtedness to the estate on the part of Garret by reason of the contract, which would be charged against his share of the estate; (e) that the executors must sue for the face of the contract and that they cannot credit on the contract any sum as Garret's share of the estate and sue for the balance; (f) that Garret's share of the estate cannot be credited on the contract and suit brought for the balance; (g) that if strict foreclosure is had and Garret does not redeem, there is no indebtedness from him to the estate; (h) that since the will provides for strict foreclosure, if Garret does not redeem, his indebtedness to the estate cannot exceed his share of the estate; (i) that since the will does not give the farm to Garret and require the executors to collect from him the indebtedness due the estate under the land contract, the executors may not levy upon any portion of the farm for any balance remaining; (j) that if strict foreclosure is had and Garret does not redeem, the whole farm will be sold and all the executors can get is the farm; (k) that there will be no excess if strict foreclosure is had; (1) that if in the foreclosure action the contract is determined to be null and void and Garret relinquishes (the farm) to the estate, there is no indebtedness to the estate under the will; (o) and (p) that the executors have no discretion as to choice of remedy, they must seek strict foreclosure of the land contract under the terms of the will.
It will be observed from the statement of facts that the court below, upon due proceedings had to that end on August 10, 1939, entered its judgment construing the same provisions of decedent's will as are involved in the judgment of July 22, 1940, construing the will for the second time, from which latter judgment the appeal herein was taken. No appeal was taken from the judgment of August 10, 1939. The same interested parties and the same subject matter were before the court upon the first construction of the will as were before the court in the proceedings for the second construction of the will, the only difference being that, in the latter proceeding, the executors sought certain instructions from the court as to their powers and duties as executors.
We think it clear that the judgment of August 10, 1939, is res adjudicata. In Triba v. Lass, 146 Wis. 202, 204, 131 N.W. 357, the court said:
"The county court had the power to construe the will and determine what distribution was intended by it, and it may be conceded for the purpose of this appeal that its judgment until reversed would be binding on all persons in interest who were parties to the proceeding and properly before the court." See cases cited.
To the same effect, see Will of Inbusch, 193 Wis. 10, 12, 212 N.W. 634, and Will of Brandstedter, 198 Wis. 457, 459, 224 N.W. 735.
The respondent argues that the doctrine of res adjudicata is not applicable here because on the first application for a construction, of decedent's will, the question as to the action to be taken by the executors with reference to the land contract was not before, or passed upon by, the court. There is no merit in this contention.
The language of the will as set out in the margin is clear and unambiguous. It states precisely how the indebtedness of the several children to the father at the time of his death was to be computed. The will also provides that where the amount of the legatee's indebtedness exceeds said legatee's distributive share of the estate, that the difference shall stand as a debt of such legatee to the estate and shall be treated the same as any other indebtedness owing to the testator at the time of his death, the only exception being as to the rate of interest and the authorization to the executors to defer and postpone the time of payment as they may see fit.
The first construction of decedent's will being res adjudicata, it follows that any instructions, which the court might give to the executors as to their powers and duties with reference to the proceedings under the land contract, must be in accord with the judgment of August 10, 1939, construing the will. It was determined by that judgment that the respondent, Garret Greeneway, Jr., and Annette Greeneway, his wife, were indebted to decedent at the time of his death in the sum of $8,700 as principal due on the land contract and that the will provided for a deduction only as to the rate of interest. It was further adjudged:
". . . That the said sum of eight thousand seven hundred dollars together with all unpaid interest upon the sum of four thousand seven hundred dollars should be charged against the share of Garret Greeneway, Jr., as a legatee in the estate of Garret Greeneway, Sr., and that if the said sum of eight thousand seven hundred dollars and interest as aforesaid shall exceed the share of said Garret Greeneway, Jr., as such legatee, then that the excess thereof shall stand as a debt due to the estate of decedent to be treated as any other indebtedness owing to decedent at the time of his death. . . ."
Since the judgment appealed from must be reversed, and in view of the fact that the court below in its instructions to the executors on July 22, 1940, held that it was their duty to seek strict foreclosure of the land contract and that they cannot credit the amount of Garret's distributive share under his father's will against the amount which he owes to the estate, we think it proper on this appeal to say that it is both the right and duty of the executors to retain in their hands Garret's distributive share and apply it on his indebtedness to the estate. This is in strict accord with the letter and spirit of his father's will. It is also in accord with the rule approved by this court in Bainbridge v. Bainbridge, 230 Wis. 610, 617, 284 N.W. 536. See cases cited.
It appears that a part of the trial court's instructions to the executors relates to their duties in connection with an action begun by them against Garret Greeneway, Jr., and Annette Greeneway, his wife, to foreclose the land contract. It further appears that in that action the executors asked for an alternative judgment, that is, they first asked for a judgment against Garret and his wife for the total principal due on the land contract with accrued interest, and secondly, for strict foreclosure and for damages for breach of contract. The court below, in its instructions to the executors of July 22, 1940, said that they must resort to strict foreclosure. We know of no law to that effect, nor is there any occasion to ask for alternative relief. Upon the breach of the conditions of a land contract, the vendor has three remedies: (1) He may elect to sue for the unpaid purchase money; (2) he may elect to sue for specific performance of the contract; and (3) he may elect to declare the contract at an end. Oconto Co. v. Bacon, 181 Wis. 538, 543, 195 N.W. 412, 40 A.L.R. 175. The executors, of course, have the same rights and remedies which the vendor would have if living. It appearing that the executors are suing for the unpaid purchase price of the land covered by the land contract, they may credit the amount of Garret's distributive share in the estate of his father on the amount due from him, if any, on the land contract to the estate.
By the Court. — The order and judgment of July 22, 1940, are reversed, and cause remanded for further proceedings in accordance with the opinion.