#### Riehl vs. Bingenheimer.

Trust Deed — Homestead : *Deed of homestead in trust for grantor's wife and children, valid without wife's*signature.— *Vests legal title in*cestuis que trust.

Ejectment : *Variance between complaint and proof as to plaintiff's interest.*

1. Deed of an undivided tliree-fourths of grantor’s homestead, in 1851, to A. as trustee for grantor’s wife and X. and Y., his two children, and their heirs and assigns, without any duty charged upon the trustee in relation thereto. *Meld,*

(1.) That the deed was not void for want of the wife’s signature, not being an “ alienation ” of the homestead, within the meaning of the statute on that subject. •

^(2.) That the trust expressed in the deed being *a passive*one, the grantee took no title, but the estate vested by the statute immediately in the *cestuis gue trust,*each taking the legal title to an undivided one-fourth of the land.

.2. X. having died unmarried before becoming of age, and the grantor *85having also died, his wife took title hy inheritance to one-half the undivided fourth so conveyed to X.

3. A complaint in ejectment for an undivided share of land was properly dismissed when it appeared that the share to which plaintiff was entitled was less than that claimed.

APPEAL from the Circuit Court for *Milwaukee*County.

Ejectment. Tbe plaintiff appeals from a judgment dismissing tbe complaint. Tbe case is stated in tbe opinion.

*Carpenter & Murphey,*for appellant,

argued, among other things, that tbe premises conveyed being tbe homestead, tbe deed of Paul Bingenheimer, without tbe signature of tbe wife, was void. E. S. 1849, cb. 102, sec. 52. If tbe wife were tbe only party intended to be protected by tbe statute relative to tbe homestead, there might be ground for saying that tbe wife was bound in consequence of tbe facts that said deed was partly for her benefit, and that she accepted a release of that interest from Judge Paine. But tbe statute is designed to protect tbe children also; and it makes tbe conveyance void as to all persons, certainly, whose rights of property are impaired or in any manner affected thereby. 2. Where, by the. statute (E. S. 1849, cb. 57, sec. 8), tbe legal estate, under a deed of trust, vests directly in tbe *cestuis que trust,*tbe latter take tbe legal estate “ upon tbe same conditions ” upon which tbe trustee would have taken it bad bis title been good. Tbe deed to Judge Paine creates a trust in fee, not only during tbe lives of tbe *three*grantees, but of their heirs and assigns forever. There was, then, a suspension of tbe power of tbe grantees to alienate tbe land for more than two lives then in being; and tbe deed was void'for any purpose. E. S. 1849, cb. 5, sec. 15; *Harris v. Clark,*8 Seld., 242; *Amory v. Lord,*5 Seld., 403; *LeKay v. Irving,*5 Denio, 646. 3. Paul Bingenheimer having died intestate, owning tbe premises in fee, they descended to bis children and beb’s, tbe plaintiff and her sister Elizabeth. E. S., cb. 63, sec. 1. On tbe death of Elizabeth, her interest became vested in tbe plaintiff. Subd. 6 of said sec. 1; *Hash v. Cutler,*16 Pick., 491; *Sheffield v. Lovering,*12 Mass., 491; *McAfee v. Oil-**86more, 4 N. EL, 395; *Crowell v. Clough,*3 Foster, 211; *Prescott v. Carr,*9 id., 453. 4. Till dower is assigned, a widow bas no estate in tbe lands, but at most a mere ctose in action. *Gb'een v. Putnam,*1 Barb., 500; *Stewart v. McMartin,*5 id., 438; 13 Wend., 536; 10 id., 414, 528; 2 Cow., 651; 17 Johns., 168; 20 id., 413; Washb. on B. P., 253. 5. In ejectment, parties are confined to their legal rights. *Parkison v. Bracken,*Burnett, 13; *Cillett v. Treganza,*13 Wis., 472; *Eaton v. Smith,*19 id., 537. But defendant has not even an equitable title to the land, but at most a mere personal claim against the ward for her education and maintenance. A guardian has no lien on the property of his ward for services or disbursements. *Norton v. Strong,*1 Conn., 70. And if he had, it could not exist until the amount was ascertained and the lien declared by the decree of some competent court.

' *Palmer, Hooker & Pitkin,*for respondent.

LyoN, J.

This action was brought to recover possession of a lot in the city of Milwaukee.

It appears that one Paul Bingenheimer, who was the father of the plaintiff and the husband of the defendant, being the owner in fee of said lot and in the occupation thereof with his family as his homestead, in July, 1851, conveyed an undivided three-fourths of the same to Byron Paine as trustee for the defendant, the plaintiff, and Elizabeth, another daughter of Paul. The deed to Judge Paine contains no particular statement or declaration of the purposes for which such trust was created, further than what is expressed in the *habendum*clause, as follows : “ To have and to hold said premises as above described, with the hereditaments and appurtenances, unto the said party of the second part, as said trustee for the said *Ann Marie, Cath-arine*and Elizabeth Bingenheimer, and their heirs and assigns forever.” Then follow the usual covenants of seizin, against incumbrances, and for quiet possession, running in form to the grantee, without further mention of his trust capacity. On the *87same day, Judge Paine executed two deeds of such premises to the defendant, both of the same tenor and effect, conveying one of said three-fourths to her absolutely, and the other two fourths in trust for the plaintiff and Elizabeth. The view which we talce of the effect of the conveyance to Judge Paine renders it unnecessary to refer further to these two deeds executed by him to the defendant.

Paul Bingenheimer died intestate in 1852, leaving surviving him the defendant, Ms widow, and the plaintiff and said Elizabeth, Ms cMldren and only heirs. The daughter Elizabeth was never married, and she died in 1858, under the age of twenty-one years. The plaintiff became of age July 10, 1869.

On these facts the circuit judge found and held that the defendant is the owner in fee of an undivided three-eighths of said lot; one-fourth thereof by virtue of the deed from her husband to Judge Paine, and one-eighth thereof as the heir of her deceased daughter, Elizabeth, And because the plaintiff had failed to establish her right to the whole of the premises claimed by her in her complaint, judgment was ordered and duly entered dismissing her complaint, with costs. Erom that judgment the plaintiff has appealed to tMs court.

It is contended by counsel for the plaintiff, that the conveyance by Paul Bingenheimer to Judge Paine is void, because the premises sought to be conveyed by it were a homestead, and the wife of the grantor did not join in such conveyance. The statute then was, and still is, that a mortgage or other alienation of a homestead by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same. This statute was enacted to protect the wife, and to enable her to protect her family, in the possession and enjoyment of a homestead, after one had been acquired by her husband; but evidently it was not intended to interpose obstacles in the way of the conveyance of such homestead to the wife, or to the wife and children, with the consent and approval of the wife, whatever might be the form of such conveyance.

*88Under tbe circumstances of tbis case, we are of tbe opinion tbat tbe conveyance to Judge Paine was not an alienation of tbe homestead witbin tbe meaning and intent of sucb statute. Tbe express trust wbicb was attempted to be created by tbat conveyance is clearly a passive one, and tbe grantee took no title by virtue of tbe conveyance, but tbe legal estate vested immediately in tbe defendant, tbe plaintiff and Elizabeth, to tbe extent of tbe estate therein granted to them respectively. R. S. 1849, chap. 57, sections 3 and 5; *Goodrich v. Milwaukee,*24 Wis., 422.

It is argued tbat tbe statute last cited renders sucb conveyance void. But it seems evident tbat tbis position is not well taken. That statute, doubtless, renders tbe *trust*wbicb was thus attempted to be created, void, but it makes tbe deed operative to convey tbe legal estate to tbe *cestuis que trust*therein named.

It will thus be seen tbat tbe deed to Judge Paine is valid, and tbat, in respect to tbe portion of tbe homestead thereby conveyed to tbe defendant, it performs an important office. Had tbe conveyance been made direct to tbe defendant by her husband, it would have been void at law, and she could have bad no benefit therefrom in tbis action, wbicb is an action at law, and in wbicb only tbe *legal*title is available. *Putnam v.*Bicknell, 18 Wis., 333. But tbe conveyance being in form to a trustee for her use, but so drawn tbat no title to tbe lot vested in the trustee, tbe legal as well as tbe equitable title to tbat portion attempted to be so conveyed for her benefit, at once became vested in her by virtue of tbe statute, and she may assert such title in tbis action.

We conclude, therefore, tbat tbe defendant is tbe owner in fee of an undivided one-fourth part of tbe lot described in tbe complaint, by virtue of tbe deed from her husband to Judge Paine; and it is obvious tbat she is also tbe owner in fee of another undivided one-eigbtb part thereof, wbicb she inherited from her daughter Elizabeth, pursuant to tbe revised *89statutes of 1849, cbap. 63, sec. 1, subdivision 3. Tbe circuit judge, therefore, held correctly that she was seized ia fee of an undivided three-eighths of such lot at the commencement of the action. It is not disputed that the plaintiff is the owner in fee of the remaining five-eighths thereof.

In dismissing the complaint upon this state of facts, the circuit court followed the decisions of this court in *Allie v.*Schmitz, 17 Wis., 169, and *Bresee v. Stiles,*22 Wis., 120; and it is not claimed that these decisions are inapplicable to this case.

The answer of the defendant alleges that she was duly appointed guardian of the plaintiff in 1855, that she qualified and has ever since acted as such, and has never been discharged. It ■ further alleges that she has paid out large sums of money for the support and maintenance of the plaintiff, for taxes upon her real estate, and for the necessary repairs and improvements thereof The circuit court found that these allegations of the answer are true.

The defendant, by her answer, prayed that an account of such expenditures might be taken, and, in default of payment thereof, that the interest of the plaintiff in the lot in controversy might be sold, and the proceeds of the sale applied to pay the same; and that in the meantime the proceedings in this action be stayed. We understand that the right of the defendant to such relief was not claimed for her on the argument in this court, and we have not examined the question. Neither is it claimed that her dower interest in the undivided one-fourth of said lot of which her husband died seized, can be asserted in this action.

The judgment of the circuit court must be affirmed.

*By the Court.*— Judgment affirmed.