McDougall v. Force

Wisconsin Supreme Court

McDougall v. Force

208 N.W. 254, 189 Wis. 550, 1926 Wisc. LEXIS 118

DecidedApril 6, 1926

StatusPublished

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Bluebook

McDougall v. Force, 208 N.W. 254, 189 Wis. 550, 1926 Wisc. LEXIS 118 (Wis. 1926).

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Opinion

Eschweiler, J.

Appellant contends that her positive denial of any marriage ceremony between herself and Edward E. Mick, there being an absence of any direct testimony of such, required the trial court to find the fact to be [553]*553in accord with such denial, and therefore that the trust under the will of Edward McDougall was not terminated.

The facts, however, as outlined above were ample grounds for the trial court to determine that there was as a matter of fact a marriage ceremony between appellant and Mr. Mick, followed or accompanied by admitted cohabitation and the holding out to the world that they were husband and wife. Her proceedings before the Milwaukee county court in the estate of Edward E. Mick, in which she repeatedly asserted under oath that she was his widow, while not conclusive, are very persuasive, to say the least, as in the nature of a declaration or admission on her' part that there was such a marriage. West v. State, 1 Wis. 209, 228; Prickett v. Muck, 74 Wis. 199, 203, 42 N. W. 256; 38 Corp. Jur. 1336; 18 Ruling Case Law, 424. While not conclusive against her as to the existence of the fact of such marriage, nevertheless it was well within the province of the trial court to attach more weight and importance to her assertions of a marriage, when claiming the property.of the- deceased Edward E. Mick as his widow, than to her sworn denial in this matter when seeking to retain her hold of the trust created by McDougall.

Appellant further complains in that she was removed as trustee and another appointed to wind up and dispose of the estate. She had neglected for some time, after repeated notices to her and her attorney, to file complete and proper accounts of her doings with the trust estate. The mere fact that she was properly entitled to all the income from the same is no sufficient excuse for such failure. Her attitude in withholding from the other beneficiaries of the trust and from the court knowledge of the fact as found by the trial court of the marriage with Mick and the consequent termination of the trust was also such conduct as would justify her removal; Laughlin v. Griswold, 179 Wis. 56, 190 N. W. 899. Other assignments of error do not need discussion.

By the Court. — Judgment affirmed.

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Eschweiler, J.

Appellant contends that her positive denial of any marriage ceremony between herself and Edward E. Mick, there being an absence of any direct testimony of such, required the trial court to find the fact to be [553]*553in accord with such denial, and therefore that the trust under the will of Edward McDougall was not terminated.

The facts, however, as outlined above were ample grounds for the trial court to determine that there was as a matter of fact a marriage ceremony between appellant and Mr. Mick, followed or accompanied by admitted cohabitation and the holding out to the world that they were husband and wife. Her proceedings before the Milwaukee county court in the estate of Edward E. Mick, in which she repeatedly asserted under oath that she was his widow, while not conclusive, are very persuasive, to say the least, as in the nature of a declaration or admission on her' part that there was such a marriage. West v. State, 1 Wis. 209, 228; Prickett v. Muck, 74 Wis. 199, 203, 42 N. W. 256; 38 Corp. Jur. 1336; 18 Ruling Case Law, 424. While not conclusive against her as to the existence of the fact of such marriage, nevertheless it was well within the province of the trial court to attach more weight and importance to her assertions of a marriage, when claiming the property.of the- deceased Edward E. Mick as his widow, than to her sworn denial in this matter when seeking to retain her hold of the trust created by McDougall.

Appellant further complains in that she was removed as trustee and another appointed to wind up and dispose of the estate. She had neglected for some time, after repeated notices to her and her attorney, to file complete and proper accounts of her doings with the trust estate. The mere fact that she was properly entitled to all the income from the same is no sufficient excuse for such failure. Her attitude in withholding from the other beneficiaries of the trust and from the court knowledge of the fact as found by the trial court of the marriage with Mick and the consequent termination of the trust was also such conduct as would justify her removal; Laughlin v. Griswold, 179 Wis. 56, 190 N. W. 899. Other assignments of error do not need discussion.

By the Court. — Judgment affirmed.

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208 N.W. 254, 189 Wis. 550, 1926 Wisc. LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdougall-v-force-wis-1926.

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