Bradley Co. v. Rock Falls, 166 Wis. 9.

up stream of about six miles, affecting sixty-five government descriptions of land and covering 442 acres. Ten of such descriptions and seventy-seven acres of such flowage, most of which are in the town of Bradley, are not owned by the plaintiff, and a number of them are in hostile ownership. Most of the land owned by plaintiff was originally purchased for logging purposes, but it had acquired flowage rights on a half a dozen or so descriptions owned by others lying in the proposed flowage and had offered its lands and water privileges for sale.

The assessor assessed against lots 4, 5, 1, and 8 the value of all of such undeveloped water power, including the value of the flowage privileges lying in the town of Bradley, and plaintiff was compelled to pay a tax of $1,101.28 thereon. It was stipulated upon the trial that if the court should set aside the assessment it should determine the amount of the tax justly due instead of ordering a reassessment under sec. 1210b, Stats. 1915. The court held that each of the four lots in question should be assessed upon its value as land plus the value of its water privileges considered as a part of the total water privileges. In other words, it held that the value of the water privilege of each description should be assessed to it, such value being arrived at by a consideration of the relation it bore to all the other water privileges taken as a unit. So assessed the tax amounted to $272.28, and judgment for plaintiff was entered for the difference. The defendants appealed.

For the appellants there was a brief by J. & M. Van Hecke of Merrill, and oral argument by John Van Hecke and E. E. Brossard, assistant attorney general.

For the respondent there was a brief by Goggins, Brazeau & Goggins of Grand Rapids, and oral argument by B. R. Goggins.

VINJE, J. Some discussion as to what constitutes easements in gross and easements appurtenant is contained in

Bradley Co. v. Rock Falls, 166 Wis. 9.

brief of counsel, and cases from other jurisdictions holding that under facts similar to those at bar each parcel should be assessed its proportionate share of the water privilege appurtenant to it are cited. We shall not discuss either, as we do not find it necessary to go beyond the plain terms of our statutes in deciding the case. Sec. 1039, Stats. 1915, requires that "All real property not expressly exempt from taxation shall be entered upon the assessment roll in the assessment district where it lies," and sec. 1052, Stats. 1915, requires that "In determining the value the assessor shall consider, as to each piece, its advantage or disadvantage of location, quality of soil, quantity of standing timber, water privileges, mines, minerals, quarries, or other valuable deposits known to be available therein, and their value." Nothing can be added by way of explanation to these plain statutory provisions to show that the trial court correctly disposed of the case.

It assessed upon each of the four lots its value as land and added thereto its water-privilege value, which it arrived at by determining the relation it bore to the value of all the water privileges considered as a unit. Thus each parcel was assessed only its proportionate share of the whole water-privilege value, including the flowage, considered as a unit. The assessor assessed against these four lots the value of all the water privileges, including those of the flowage lying in the town of Bradley. In doing so he violated the plain language of the statute.

Some suggestion is made in the brief of counsel for defendant that the trial court's findings as to the taxable value of the lots are not sustained by the evidence. This suggestion has no foundation in fact. The findings of value rest upon competent, satisfactory evidence and cannot be disturbed.

By the Court.-Judgment affirmed.

Kellogg v. Stroud, 166 Wis. 12.

KELLOGG, County Judge, Respondent, vs. STROUD, Executor, and others, Appellants

May 16-June 12, 1917.

Wills: Construction: Bequest to son of the "use only" oj property: Expenditure from corpus at discretion of a co-executor: Unauthorized expenditure by son: Action, after his death, on his bond as executor: Limitations.

1. By her will a testatrix gave to her son certain real estate in fee and the "use only" of the residue of her property during his life, disposing of such residue otherwise after his death. The son and another person were named as executors, and the will provided that if it should appear to the associate executor "that from sickness long continued or from any other providential cause the money arising from the use of my said estate should not be sufficient to give the said [son] all the reasonable comforts of life," then such associate executor was authorized to pay to the son such sums "as may be necessary for his comfortable support and care," not exceeding $300 in any one year. The son qualified as executor, but the other person named declined to act and no one was appointed in his place. Held, that the son had no authority to expend, even for necessary comforts, any part of the corpus of the property of which he was given the "use only," unless a determination of the amount to be expended was first made by an associate executor or by the county court. 2. The son not having rendered a final account as executor during his lifetime, and the remaindermen having no right to the possession of the residue until after his death, no cause of action upon his bond as executor, to recover moneys wrongfully appropriated by him, accrued until after his death, and the statute of limitations did not until that time begin to run against such an action.

3. The liability of an executor and of the sureties on his bond continues in such a case until the trust is fully performed.

APPEAL from a judgment of the circuit court for Columbia county: CHESTER A. FOWLER, Circuit Judge. Affirmed. Nancy H. Hillyer, a widow, died testate May 28, 1883, leaving an estate of about $8,885. She had one son, Drayton A. Hillyer, her sole heir at law, whom she made her beneficiary by her will. She gave him certain real estate in fee

Kellogg v. Stroud, 166 Wis. 12.

and the "use only" of the residue of her property "for and during the term of his natural life only."

The will further provided that "after the death of my said son, D. A. Hillyer, I hereby direct that all of my estate remaining, both real and personal, shall be given to his child, or children," and that if said D. A. Hillyer should die without issue, "all the estate that remains at the time of his death" as aforesaid was devised and bequeathed unto certain nephews named.

The will contained the following item:

"Sixth. If it should appear to the executor to be hereafter associated with my said son, D. A. Hillyer, in executing this my last will and testament, that from sickness long continued or from any other providential cause the money arising from the use of my said estate should not be sufficient to give the said D. A. Hillyer all the reasonable comforts of life, then and in that case my said executor is hereby authorized and empowered to pay to the said D. A. Hillyer such sum or sums (at such time or times as to him may seem meet) as may be necessary for his comfortable support and care, not to exceed, however, in any one year, the sum in the aggregate of three hundred dollars."

The will appointed Drayton A. Hillyer and Miles T. Alverson executors. Alverson declined to act. Hillyer qualified and filed a bond in the sum of $10,000 with four sureties, viz. Henry Little, E. K. Thayer, James Gowran, and George W. Morrison, each of whom is now deceased, but one of whom, George W. Morrison, was living at the time of the trial in the circuit court and died after the entry of judg ment. [The defendant Stroud is Morrison's executor, and the other defendants are the heirs of one of the deceased sureties.]

Drayton A. Hillyer took possession of the property, and in 1884 filed a partial account showing $6,687.85 worth of property in his hands. In 1894 he filed a corrected partial account, which showed that $1,700 of the securities making

Kellogg v. Stroud, 166 Wis. 12.

up the amount of his account in 1884 never came to his hands, which left him charged at that time with $4,983.30. Drayton A. Hillyer died December 15, 1913. A claim was presented against his estate by the administrator de bonis non of Nancy H. Hillyer for the amount of her personal estate adjudged in his hands as executor and was on December 21, 1914, allowed in favor of the administrator de bonis non of Nancy H. Hillyer at $5,078.85.

This action was duly commenced in May, 1915, in the name of the county judge of Columbia county, Wisconsin, to recover on the bond of the executor of Nancy H. Hillyer. The action was tried before the court, findings of fact and conclusions of law made, and judgment directed thereon in favor of the plaintiff for the sum of $5,436.50. Judgment was entered accordingly, from which this appeal was taken.

W. S. Stroud of Portage, attorney for Edward A. Gowran and Mary O'Neil Gowran, and H. E. Andrews of Portage, attorney for Estate of Geo. W. Morrison, for the appellants.

For the respondent there was a brief by Rogers & Rogers of Portage, and oral argument by Harlan B. Rogers.

KERWIN, J. Several contentions are made for reversal which, so far as material to our decision, will be considered.

1. It is insisted that under the sixth item of the will, set out in the statement of facts, it was clearly the intention of the testator that her son, Drayton A. Hillyer, might annually use such portion of the corpus of the estate as might be necessary to give him all the comforts of life, and for such purpose he might draw upon the corpus, and if necessary. during his life consume it, without the intervention of the executor named in the will or any action on the part of the county court. And it is claimed that the evidence and findings establish that D. A. Hillyer might have expended the corpus of the estate for the reasonable comforts of life, or at least a large portion of it, in addition to the income from the