Action to quiet title begun January 24, 1939, by August Malzahn against Grace L. Teagar and Clarence Kutchin. From a judgment establishing and declaring the title in plaintiff, defendant Grace L. Teagar appeals.
The complaint alleges that plaintiff is the owner in fee simple and in possession of certain real estate to which the defendants make some claim adverse to plaintiff's title and asks judgment establishing his title and barring the defendants from having or claiming any right or title to said premises adverse to the plaintiff. The defendant Grace L. Teagar in her answer alleges that Clarence Kutchin prior to October, 1920, was in possession of the lands as a life tenant only; that although he conveyed to plaintiff, only a life estate for the life of Clarence Kutchin was transferred; that she now is and has been the owner in fee subject to such life estate and seeks judgment establishing her ownership of all right, title, and interest in such real estate subject only to use by another during the life of the said *Page 633 Clarence Kutchin. The case was tried to the court, and the findings of fact are:
That Amanda Kutchin, now deceased, was seized in fee simple of the premises described as follows:
"The north half of the northwest quarter of the southwest quarter (N 1/2 of NW 1/4 SW 1/4) of section twenty-two (22), in township sixteen (16) north, of range thirteen (13) east, excepting therefrom the following described parcel of land, to wit: Commencing in the center of the public highway at the northwest corner of the northwest quarter of the southwest quarter (NW 1/4 SW 1/4) of section twenty-two (22), thence south along the section line forty (40) rods; thence east two (2) rods; thence north parallel to the line first above described forty (40) rods to the center of the public highway, and thence west in the center of said highway two (2) rods to the place of beginning."
That the will of said Amanda Kutchin was admitted to probate by a decree rendered on January 28, 1902; that the said will and a certificate of the proof thereof was entered in the records of the county court on January 28, 1902, and recorded in the register of deeds office for Green Lake county on November 1, 1912, in volume 74 of wills at page 71. The pertinent provisions of the will are as follows:
"First: I give, devise and bequeath to my son Clarence Kutchin, a life estate, use and control, in and of the northwest quarter of the northwest quarter of section 22, in township 16 north, range 13 east, my present homestead.
"In the event of his decease, his wife Emily is, if living, to have like use, occupation and control so long as she may remain his widow and personally occupy and preside upon said property.
"If she remarry, die or cease so to occupy, said estate shall vest absolutely in fee simple forever, in the child or children of said Clarence, then living, if any there be.
"In default of such living child or children, said estate shall go, with like effect, to my son Victor, and to his child or children then living in case of his decease. *Page 634
"If said Clarence and Victor both die, leaving no child or children, the then said property shall go to, vest in, my daughter Ada Alling and my sons Daniel W. and Horace in equal proportion in a fee-simple estate. . . .
"Third: After the payment of my just debts and my funeral expenses, including a suitable monument, I give, devise, and bequeath to my said son Clarence all my remaining estate, real and personal, of every description whatsoever."
Further findings of fact were that the testatrix was found in the county court proceedings instituted by the defendant Grace L. Teagar never to have owned the property described in the will as the northwest quarter of the northwest quarter, but rather to have owned land in the northwest quarter of the southwest quarter and that the will was reformed to include the proper description; that the above county court order construed the will so as to give Theodore Kutchin a fee-simple estate after his mother Emily's death, subject only to a life estate in favor of his father Clarence; that the plaintiff was not a party to the county court proceedings; that Clarence Kutchin has no living children; and that Victor Kutchin is living and has two living children, naming them.
The conclusions of law were that the will of Amanda Kutchin passed the title of all her real and personal property and that the title to the lands described in the complaint became fixed in Clarence Kutchin under the residuary clause of the will of Amanda Kutchin deceased; that the plaintiff was entitled to rely on the terms of said will as the same appeared on the said record; that the defendant Grace L. Teagar was chargeable with notice and is estopped by her failure to exercise diligence in instituting proceedings for the correction of any error in such records; that under the terms of the first paragraph of the will "the property described or intended to be described therein vested in Clarence Kutchin for life;" that the interest of Theodore Kutchin was contingent upon the termination of a life estate in his *Page 635 mother which never came into being so that no estate was vested in the said son Theodore; that the order entered in the county court reforming the said will and construing it as vesting an estate in remainder in Theodore Kutchin is without force or effect as against the plaintiff "for the reason that he was not a party to said proceeding and not subject to the jurisdiction of said court;" that plaintiff is vested with the title in fee simple of the lands claimed by him and is entitled to judgment in accordance with the prayer in his complaint.
From a judgment accordingly entered, defendant appeals and assigns as error the holding that the circuit court in this action had jurisdiction to construe the will of Amanda Kutchin deceased; that the plaintiff was a bona fide purchaser of the lands or premises in question as against the defendant Grace L. Teagar; and that the plaintiff had good title in fee as against her. Appellant pleads that she is the owner in fee of the land in question subject to the life estate in Clarence Kutchin. Her rights, if any, are derived through her marriage to Theodore Kutchin who was a possible remainderman, she claiming that the remainder vested in Theodore before his death, and that she is his only heir. This plea was rejected by the circuit court which held that the remainder was contingent at the time of Theodore's death and being thus suspended the devise failed as to him. The correctness of that construction of the will, in view of the conclusion reached, determines the result of this appeal. *Page 636
Amanda Kutchin died December 4, 1901. Her will was duly admitted to probate by decree of the county court of Green Lake county as recited in the statement of facts, and was duly recorded. The will disposed of real estate in the northwest quarter of the northwest quarter of section 22, township 16 north, range 13 east, by a specific devise and disposed of real estate in the northwest quarter of the southwest quarter of the same section by a residuary clause. It now appears that the scrivener confused the two pieces of land and placed the descriptions in the wrong clauses. It was the intention of the testatrix to give her son Clarence some land in fee simple and a life estate in other lands. The error of the scrivener appears when consideration is given to the use of the words "my present homestead" in connection with the land improperly described as being in the northwest quarter of the northwest quarter. It is now conceded that testatrix never owned the land described by the specific devise and that the homestead was in the northwest quarter of the southwest quarter. It has been concluded that it was the testatrix's intention to grant a life estate in the land owned by her and used as her homestead in the southwest quarter.
It is the ownership of the land in the southwest quarter which is here involved. The misdescription was not called to the attention of the court until upwards of thirty-five years after the instrument was admitted to probate and recorded as a valid will. In the meantime, on October 20, 1920, the respondent, relying upon the record as it then stood, made his purchase of the premises in question which he supposed had passed under the residuary clause of the will in fee simple to Clarence. There is no room for questioning the good faith of respondent or that he is an innocent purchaser for value. The clauses of the will related to the appellant's claim were construed by the county court *Page 637 in 1938 as though the remainder had vested in Clarence's son Theodore upon the death of Theodore's mother Emily. In the circuit court it was determined that the remainder was still contingent and had not vested.
The reading of the whole will shows an intention on the part of the testatrix to prevent the vesting of the remainder until after the termination of Clarence's life estate. The controlling element in a construction of this will is the fact that the testatrix granted a life estate to Clarence and suspended the vesting of the remainder by the use of the words "in the event of his decease" in connection with the clauses which read in default of such living child or children. That default is related directly to a time indicated by the words "in the event of his decease," and that when this contingency happens in default of living child or children of Clarence the estate "shall go, with like effect, to my son Victor, and to his child or children then living in case of his decease. If said Clarence and Victor both die, leaving no child or children," then the remaindermen are provided to be the daughter and other sons.
Vesting of a life estate in Clarence's wife or of the remainder in anyone could not occur until after Clarence's death. The language of the will can be given its true effect only by construing the considered provisions to mean that the children of Clarence succeed to the title only after the termination of the estate of the father and mother if she survived him. It seems to be clear as stated in the brief of the respondent that it is as though the will had read: "I give a life estate to my son Clarence and thereafter to his wife Emily, and thereafter vest the remainder" in certain heirs of the testatrix's blood then surviving.
The county court proceeding referred to was had without giving the respondent any notice thereof, and as he was not a party it is elementary that he is not bound by the ruling there made. 34 C.J. p. 756, § 1165. He was not a *Page 638 party to the action nor in privity with a party thereto, because his interest was acquired before the county court proceeding to construe the will. Lancaster v. Borkowski, 179 Wis. 1,190 N.W. 852. His title first came under attack some seventeen or eighteen years after he made a good-faith purchase and the only time the will was presented in any court in any proceeding to which he was a party to challenge his ownership was in the case at bar. Title to real estate passes by will, when duly probated, and not by decree of the court. Estate of Ross, 181 Wis. 125,194 N.W. 151. Therefore, the circuit court properly entered upon a construction of the will as an original proposition to determine its effect upon the respondent's title.
Appellant's claim is based on the fact that she was the wife of Theodore Kutchin who would have taken the fee had he survived his father. But since Theodore predeceased his father and thereby prevented the vesting of this contingent remainder in him, his heir at law, the appellant here, is precluded from claiming any interest in this land. Fordv. Ford, 70 Wis. 19, 33 N.W. 188; 23 R.C.L. p. 523, § 63.
This conclusion leaves the appellant without cause for claiming an interest adverse to the respondent, and entities him to the relief asked for as against her. The record shows him to be the owner by deed conveying all the rights of possible remaindermen. It is unnecessary to pass upon the question as to whether the probate of the will and its recording was a sufficient protection of respondent's title and a decision upon that question is reserved.
By the Court. — Judgment affirmed. *Page 639