Opinion
January 15, 1940 —
February 13, 1940.
APPEAL from a judgment of the county court of Buffalo county: G. L. PATTISON, Judge. Affirmed.
M. L. Fugina and Marvin L. Fugina, both of Fountain City, for the appellant.
James J. Gleeson of Alma, guardian ad litem, for Anna Ruppert.
Blaine M. Linke, collection and deportation counsel, and Paul B. Knuese, assistant collection and deportation counsel, for the respondent.
Petition by the State Board of Control dated February 23, 1938, asks for the construction of the will of Charles Ruppert, deceased, and the recovery of money due for support and maintenance furnished Anna Ruppert, an incompetent. From a judgment construing the will and allowing the claim, M. L. Fugina, as trustee of the estate of the incompetent, appeals.
The State Board of Control under sec. 49.10, Stats., demands the cost of care and maintenance of Anna Ruppert, who was adjudged insane June 27, 1905, and committed to the Mendota state hospital by the county court of Buffalo county, and who has since been a patient in public institutions, with the exception of two short periods of time. During all of this time Anna Ruppert has been a public charge and her expenses (except for medical care, hospital, and dental services, and clothing) have been paid by the state and county institutions in which she has been a patient.
At the time of her commitment both she and her father were residents of Buffalo county. The father moved to Winona, Minnesota, where he later died May 8, 1919, survived by five of his children, one of whom was Anna, and the children of a deceased daughter. He owned real estate in Buffalo county, Wisconsin, as well as real estate and personal property in Minnesota. His will was admitted to, probate in Minnesota in the Winona county court June 14, 1919, and because he owned real estate in Wisconsin, ancillary administration proceedings were begun in Buffalo county on August 12, 1919. His real estate in that county was valued at more than $80,000.
Charles Ruppert's will provided for a $1,500 bequest to Anna, and directed that after payment of the expenses of administration and his debts, the remainder of his estate, both real and personal, "be equally divided among my six children." The will nominated one Sendelbach, a nephew living in Waumandee, Wisconsin, to have charge of the management of the estate of Anna, the incompetent. The will provided:
"If she shall recover her reason he shall forthwith account to her and turn over and pay to her all of her share in my estate given to her by this my will, and in case of her death without having recovered her reason he shall deliver her share of my estate to her legal heirs."
The testator used the word "trustee" but gave legal title to Anna, and letters of trust were issued by the county court of Buffalo county to Mr. Sendelbach, who discharged the duties imposed upon him until January 1, 1929, when he resigned, and on January 8, 1929, M. L. Fugina was appointed to succeed him. Fugina has from that time acted in that capacity. On March 10, 1920, Sendelbach exercised a power of sale provided for in the will and by deed conveyed Anna's interest in the Wisconsin real estate to Frank Reuter. Funds derived from that source and others amount to more than $20,000, and are now in the hands of the successor to Mr. Sendelbach.
The trial court adjudged and determined that Anna Ruppert had a vested interest in the estate; that the intent of her father was to vest absolute legal title to the real estate in his daughter Anna; that she is entitled to receive the principal and income therefrom for her reasonable comfort, support, and maintenance; that the claim of the State Board of Control for the state's share of the cost of care and maintenance furnished from May 8, 1909, to December 2, 1927; from December 23, 1927, to October 21, 1932, and the state and Buffalo county's share of the cost of such maintenance from October 21, 1932, to January 31, 1938, be allowed in the sum of $2,909.40. The said M. L. Fugina, trustee, was directed to pay the sum found to be due the State Board of Control, and to pay the cost of care and maintenance furnished Anna Ruppert from and after February 1, 1938. It is from this judgment that the appeal is taken.
The appellant questions the jurisdiction of the Wisconsin court to construe the' will of Charles Ruppert, who at the time of his death was a resident of the county of Winona, Minnesota, and also whether Anna Ruppert, the incompetent, has come into possession of property so as to render her estate liable to the State Board of Control for her maintenance and support.
The validity and kind of an estate held by Anna Ruppert may be determined by the law of Wisconsin where the land which is the greater portion of her holding is situate. The devise by its nature being an individual grant of land, the will accomplishes the transfer under laws of this state. Restatement, Conflicts, p. 333, § 249. Hence, the determination of the meaning and intent of the will devising the real estate and relating to the testator's provision for his daughter Anna, is a matter within the jurisdiction of our courts. The county court of Buffalo county, in which ancillary proceedings for administration of the estate were commenced after the will had been admitted to probate in the state and county of the testator's residence, therefore, had authority to construe the will. Will of Hebblewhite, 228 Wis. 259, 280 N.W. 384.
Anna Ruppert has been a resident of this state all her life. The greater portion of her inheritance was real estate located in Buffalo county. It appears readily enough from a reading of the will that the title to the property which the father decided to have descend to his daughter was given to her, although he nominated his nephew to serve as the protector or guardian of her estate during the period of her incompetency. The language of the will is convincing. The testator begins: "In order to place Anna on an equal footing with my other children, I hereby direct that my executors set apart the sum of fifteen hundred dollars out of my estate for her." He continues in the second paragraph of the will, after providing for the payment of his debts and funeral expenses, that "after further deducting from my estate the sum of fifteen hundred dollars above set apart for my daughter Anna, it is my will that all the rest, residue and remainder of my estate, both real and personal, be equally divided among my six children," and Anna was one of the six. Being conscious of the fact that she is incapable of managing her property, he provides that as long as this mental deficiency exists the property shall be managed by others, and he provides in his will that in case of her death without having recovered her reason, the estate shall go to her heirs. Are not the devises to the several children made in language identical to that used in the devise to Anna? This cannot be overlooked, for there is no occasion for assuming a different meaning as to one when the terms used as to all are the same. Nor does the granting of a power of sale to a custodian of Anna's property, who was authorized to alienate in fee by means of a conveyance and control the proceeds arising therefrom belonging to Anna, change the nature and quality of the estate devised to her.
In his solicitude for the welfare of his afflicted daughter he contemplated circumstances of an insane person with property, and expected that her situation would require a guardian of her estate. He suggests a proper person for that office, and so far as he could he provided for events that might or might not come to pass, all without in any way affecting or limiting the fee devised to Anna. Throughout the will he used expressions such as these: "Authorizing and directing him as such trustee to take her share of my estate and manage the same, investing all moneys belonging to her . . . to sign deeds of conveyance in behalf of my daughter Anna conveying all her right, title and interest in such real estate to the purchaser thereof, and in general to do everything necessary for the proper management of her share of my estate."
This conclusion was accepted and followed by the county court of Winona, Minnesota, as well as the county court of Buffalo county, and the final decree of the latter court on March 30, 1920, provided in substance that the real estate be assigned to the residuary devisees in undivided shares in fee and absolutely. The conclusion reached in the court below that it had jurisdiction to construe the will is sustained; and it also follows that because of the circumstances under which the incompetent is maintained, it was proper to allow the claim of the state as a creditor against Anna Ruppert. The contention that the contingent rights of beneficiaries is involved is not well grounded. Title to the property having vested absolutely in Anna, there is no occasion for considering this matter further. The intention of the testator gathered from the whole will was to vest in Anna Ruppert a title in fee to the property devised to her, and during her incapacity to act for herself to have some guardian or someone acting in that capacity toward her estate, act for her.
By the Court. — Judgment affirmed.