In re Estate of Popp (WI)

Summary: The common law requirement that a deed include words of inheritance to convey full title to real estate is no longer the law in Wisconsin.


In re Estate of Popp, 349 Wis.2d 526 (Wis. Ct. App. 2013).


Facts: Mary and Donald Popp had held a 274-acre farm as tenants in common. Mary died and left a will that gave Donald a life estate as to Mary’s undivided 50% interest in the land, along with the power to sell or mortgage the land. The will required that Donald keep Mary’s land, or her share to the proceeds of sale, separate from his own property. Except for Donald’s use of the principal for his own care and support, the remainder interest belonged to their nine children, to be divided among them equally.

After Mary died, Donald remarried and conveyed the entire land by two quitclaim deeds: one to his second wife and the other to Popp Farms LLC, that he formed with his son Douglas. First, Donald quitclaimed an 8.49-acre and the house built on it to his second wife in exchange for $1,000 from her, but reserved for himself a life estate. The land secured a loan, which was later refinanced after Donald’s death. Then, Donald quitclaimed the rest of the land to Popp Farms LLC. Pursuant to an agreement executed on the same day as the deed, Donald contributed the land, Douglas contributed $500, both received shares in the LLC, and Douglas obtained a right to purchase all of Donald’s shares upon Donald’s death for $675,000 by paying 5% down and the rest in twenty years. Donald subsequently gifted 28.6% of the total value of his shares to Douglas, allowing Douglas to manage the farm and to pay Donald an annual salary of $36,000. The land secured loans, which were refinanced both before and after Donald’s death.

After Donald died, six children sued Donald’s estate, seeking to rescind the two sales made by Donald. They argued that, because Donald received a life estate as to Mary’s land, the quitclaim deeds passed only that life estate, which then had to be reverted to Donald’s estate upon his death. The six Popp children also filed a separate civil suit against the other three children, Donald’s second wife, Popp Farms LLC, and the two mortgagees. The two cases were consolidated at the circuit court. The factual issue as to whether Donald exceeded his inherited authority by gifting, as opposed to selling, the land is scheduled to be tried before jury. The legal issue as to the construction of Mary’s will and the quitclaim deeds, however, was resolved by the circuit court in favor of the defendants. The six Popp children appealed.


Holding: Affirmed. Agreeing with the circuit court, the appellate court maintained that Donald had the unrestricted power to sell the land, including Mary’s portion of it, pursuant to Mary’s will, and the two quitclaim deeds validly conveyed full title to the land. Thus, the nine children’s remainder interest attached not to Mary’s interest in the land itself, but to her interest in the proceeds of the sales.

It was undisputed that the plain language in Mary’s will unambiguously expressed Mary’s intent of giving Donald the unrestricted power to sell or mortgage the land that comprised Mary’s undivided 50% interest. While the plain language in the quitclaim deeds was also unambiguous, the six Popp children claimed that the deeds failed to convey full title to the land, basing their argument on Meister v. Francisco, 233 Wis. 319, 289 N.W. 643 (Wis. 1940). 

Meister involved a will, similar to Mary’s will here, which gave the surviving spouse a life estate and an unrestricted power to sell, with the remainder interest to others. When the surviving spouse sold the land by a quitclaim deed, the Meister court held that the quitclaim deed conveyed only the grantor’s life estate because it did not contain special inheritance language, such as “to dispose of the fee,” which would expressly state that grantor is exercising the power to sell pursuant to the will. The requirement that the deed contain words of inheritance to convey full title to the land, however, was a common law rule, which was abrogated by a later enacted statute, the substance of which remains unchanged in Wis. Stat. § 706.10(3) (2011–12) (“In conveyances of lands, words of inheritance shall not be necessary to create or convey a fee, and every conveyance shall pass all the estate or interest of the grantor unless a different intent shall appear expressly or by necessary implication in the terms of such conveyance.”) (emphasis added).

Furthermore, the Wisconsin Supreme Court confirmed that the statute dispenses with the conflicting common law rule. Borek Cranberry Marsh, Inc. v. Jackson County, 328 Wis. 2d 613, 785 N.W.2d 615, 625–26 (Wis. 2010) (holding that “every transfer of an interest in land conveys full title to that interest . . . unless [clearly] evinces a different intent.”). Thus, the correct authority to rely upon here was Borek, not Meister.

So, under Wis. Stat. § 706.10(3), Borek, and Mary’s will, Donald’s two quitclaim deeds conveyed full title to the land that comprised Mary’s undivided 50% interest.


Opinion Year: 
By: ATG Underwriting Department | Posted on: Fri, 10/11/2013 - 12:00pm