#### Triba, Appellant, vs. Lass and another, Respondents.

*April 7*—

May 2, *1911.*

*Wills: Title to land, when vests: Power of county court: Order of distribution: Effect on lease made by testator: Estoppel.*

1. The title to real estate owned by a testator at the time of his death vests immediately in the devisees thereof named in the-will, subject to the rights of his creditors.

2. The county court has power to construe the will and determine-what distribution was intended by it; but its decree can only determine the respective interests of the parties in such title-as the testator had at the time of his death, and cannot adjust, equities between the devisees and persons who had acquired rights in the property from the testator during his lifetime.

3. Thus, a final order of distribution assigning, transferring, and setting over to a devisee certain real estate for and during, the-period of his natural life, does not convey to him a full unin-cumbered life estate as against a lease made by the testator to-another person for the life of the lessee, even though such lessee was an executrix of the will and a party to the proceeding, in the county court.

Appeal from a judgment of tbe circuit court for Milwaukee county: OeeeN T. Williams, Circuit Judge.

*Affirmed.*

Prior to August 22, 1902, Josephine Triba was tbe owner-in fee of certain property in tbe city of Milwaukee, consisting-of a lot with two bouses tbereon. On tbe above date sbe died, leaving a will duly executed, wbicb was afterwards admitted' to probate, wherein sbe devised to tbe plaintiff, her son, a life-estate in tbe premises referred to. Tbe defendant *Anna Lass-*is tbe daughter of Josephine Triba, and sbe, with her bus-band, was at tbe time of her mother’s death, and still is, in-possession of tbe first floor of one of said bouses. This is an action in ejectment brought, by tbe plaintiff to recover possession of tbe portion of tbe premises occupied by tbe defendants and for tbe value of tbe use and occupation thereof up to-tbe time of tbe commencement of tbe action. Tbe defendants-*203claim right of possession under an instrument in writing dated June 21, 1902, executed by Josephine Triba, wherein, the part of the premises occupied by them was leased to the defendant *Anna Lass*during her lifetime, said defendant being required by the terms of the lease to pay an annual rental of $36. Upon a special verdict by a jury judgment was entered dismissing plaintiff’s complaint, from which judgment plaintiff appeals.

*F. H. Gugel,*for the appellant.

Eor the respondents there was a brief by *Froecte &*Boden-*stab,*and oral argument by *LI. II. Bodenstab.*

BaRNes, J.

No finding was made by the jury and none was requested in reference to the execution and delivery of the lease under which *Anna Lass*claims. We must presume in support of the judgment that the court found that the lease was duly executed and delivered. The evidence is sufficient to support such a finding.

The final order of distribution in the county court contained the following: “To *Frank Triba*there is hereby assigned, transferred, and set over all the real estate above described, for and during the period of his natural life,” etc. *Anna Lass*was the executrix named in the will of her mother and acted as such and was a party before the court in the probate proceedings. The plaintiff contends that the final order of distribution conveys to him a full unincumbered life estate in the real estate of his mother and that *Anna Lass*is concluded by that decree, being a party to the proceeding, and that if she intended to set up’ any claim to a leasehold interest she should have litigated such claim in the county court and insisted that the life estate devised to the plaintiff be assigned to him subject to her lease.

The title to the real estate owned by the deceased at the time of her death immediately vested in the devisees named in the will, subject to the rights of her creditors to have their *204■claims paid out of such real estate if the personal property available for such purpose was insufficient. *Gillett v. Treganza,*13 Wis. 472; *Williams v. Davis,*18 Wis. 116; *Markwell v. Thorn,*28 Wis. 548; *Jones v. Roberts,*84 Wis. 465, 471, 54 N. W. 917; *State ex rel. Beals v. Probate Court,*25 Minn. 22; *Williams v. Williams,*135 Wis. 60, 115 N. W. 342; *Flood v. Pilgrim,*32 Wis. 376.

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. *Appeal of Schœffner,*41 Wis. 260; *Estate of Schœffner,*45 Wis. 614; *Estate of Eastman,*24 Wis. 556; *Glover v. Reid,*80 Mich. 228, 45 N. W. 91; *Greenwood v. Murray,*26 Minn. 259, 2 N. W. 945; *Perkins v. Owen,*123 Wis. 238, 101 N. W. 415; *Estate of Leavens,*65 Wis. 440, 27 N. W. 324. At the time of the death of the testatrix her property was incumbered by and subject to the leasehold interest of *Anna Lass.*The decree of the county court could only determine the respective interests of the parties in such title as the decedent had at the time of her death. It could not adjust equities between the devisees and persons who had acquired rights in the property from the testatrix during her lifetime. *Gillett v. Treganza,*13 Wis. 472, 478; Cary, Probate Law (3d ed.) § 630. It follows from what has been said that the county court had no jurisdiction to adjudicate the rights of *Anna Lass*under her lease and therefore the judgment could not affect such rights. It is but fair to say that the court probably had no intention of doing anything further than to make such a distribution of the property as the will-called for, although the language of the decree is quite broad and is susceptible of the construction contended for by the appellant. The defendant paid the rent stipulated for in this lease to her brother for a period of about five and one-half years after the *205death of the mother and until -he refused to receive it any longer. The plaintiff is a mute who' can neither read nor write, and it may well be that he received the rent tendered after his mother’s death without knowledge of the existence of the lease, or at least of its terms, although the jury found otherwise. If the leasehold interest was not affected by the-judgment of the county court, then it is immaterial whether plaintiff knew of the existence of the lease or not, as his ignorance on that subject did him no injury. The appellant cannot complain of the failure of the lessee and executrix to retain the rents during the administration of the estate to pay the expense of such administration, because he certainly is no-worse off by reason of having been paid this rent from month to month than he would be if it had been retained and used for other purposes. The foregoing conclusions render it unnecessary to consider other questions that are discussed on the appeal, and it follows therefrom that the judgment of the circuit court is correct and should be affirmed.

*By the Court.*— Judgment affirmed.