Lindenmann v. Lindenmann

Siebecker, J.

The plaintiff in this case was awarded the sum of $2,000 out of defendant’s estate, as a reasonable sum for a final division and distribution thereof. Had the amount of defendant’s property above his indebtedness been in the form of money, we find it difficult to perceive how. an award of $2,000 to plaintiff. could be deemed just and reasonable, under the statute prescribing that such final division and distribution of defendant’s estate shall be made with “due regard to the legal and equitable rights of each party, the ability of the husband, the special estate of the wife, the character and situation of the parties and all the circumstances of the case” [sec. 2364, Stats. 1898]. The fact that the defendant’s 'property consists of equities in real estate, heavily incumbered with mortgages, renders it of uncertain value in the market, and difficult to convert into cash. Plaintiff’s cruel and inhuman treatment of the defendant, as well as her failure to keep and perform her obligations as a wife, are important facts bearing upon the amount to be awarded her out of the husband’s estate. We think that, under all the facts *177 and circumstances, the plaintiff should not recover more than $650 as and for a final division and distribution of the bus-band’s estate. Among the decisions of this court controlling in this case are McChesney v. McChesney, 91 Wis. 268 , 64 N. W. 856 ; Roelke v. Roelke, 103 Wis. 204 , 78 N. W. 923 ; and Von Trott v. Von Trott, ante, p. 29, 94 N. W. 798 . No other question is presented on this appeal.

By the Court. — That part of the judgment appealed from, providing for a final division and distribution of defendant’s estate, is modified so as to award plaintiff $650 as a final division and distribution of the defendant’s estate, and as so modified the judgment is affirmed. No costs allowed to either party. The defendant will be required to pay the fees of the clerk of this court.