Wiesner vs. Zaun. be adopted as to the statute of descents, the facts remain undisputed, that the adversely possessed title first descended and accrued to Franz; that he died under disability; and that the language of the statute therefore applies, that the action must be brought within five years. The statute was undoubtedly intended to apply, as it does in terms, to all cases where an heir dies under the disability. If, by an artificial construction, it shall be held not to apply to property descended from a parent to one of several children, it stands repealed as to a majority of cases occurring in actual life. 3. Upon the principle stated in the opinion filed in this case, Franz's one-sixth descended upon his death just as it would have done if he had never existed; therefore the two-thirtieths of Henry and August went, like their own original shares through their father, to the defendant; two other thirtieths went to the two surviving brothers; and only one-thirtieth to the plaintiff. The same result follows on the respondent's theory; each child became vested with a contingent reversion in Franz's share immediately upon the mother's death; the reversionary interests of Henry and August went to the father, and both became vested in defendant by the father's conveyance and covenants. The judgment below cannot be sustained on either of these theories; since either would give to the plaintiff' only six-thirtieths or one-fifth of the land. COLE, J. The counsel for the defendant criticises the language used in the former opinion, where it is said that the plaintiff took one-third of the share of Franz in the same manner she would have taken it if Franz had died before his mother. He insists that this statement of the rule of descent, if adhered to unqualifiedly, as laid down, will tend to shake all confidence in titles held under guardians' sales, and will startle the profession when authoritatively announced as the law of the state. For he argues that it is the logical result of the rule, where the heir takes from the ancestor, that Wiesner vs. Zaun. he takes the title just as the ancestor left it, while in the case under consideration the estate inherited is just what the minor child left at his death. The language criticised by counsel is quite similar to that used by C. J. SHAW in Nash v. Cutler, while speaking of the purpose of a section of the statute of that state regulating the descent of intestate estate to children where one of them hap. pens to die in infancy. And he said in that case that the provision intended that the infant's portion of the intestate's estate should go just in the same manner as if such child had died in the lifetime of the ancestor, or, in other words to those who would have taken the same share if such child had not existed This language is sufficiently accurate when speaking of the general purpose of the statute. But while determining as to what estate was taken by the plaintiff on the death of Franz, it was not intended to affirm as an absolute rule that the other children would take the title on the death of the minor unaffected by any conditions, as though such minor had never in fact existed. That is to say, it is not decided that if the estate of Franz had been sold for his support and maintenance, or for his education, as it might have been under the statute, the purchaser would not have acquired a perfect title. The purchaser at the guardian's sale would take the title, and that title would not be divested on the infant's death, so as to go to the surviving children in the same manner as if such infant had died in the lifetime of the ancestor. So that it is quite true, as argued by counsel, while we regard the inheritance as coming from the ancestor in order to give it according to the statute to the other children, still we must and do consider whether there are any facts and circumstances affecting the share which descended to the infant, which take it out of the rule. The existing condition of the title is regarded; and when the property has been sold at a guardian's sale for the benefit of the infant, the provision regulating descent does not apply. Berrinkott vs. Traphagen and another, impleaded. But it is further said that if the rule of descent stated in the opinion be correct, still the fact remains undisputed, that the adversely possessed title first descended and accrued to Franz; that he died under disability; and that therefore the action in respect to his share of the inheritance must be brought within five years, under sec. 13, ch. 138, R. S. Under the construction which we were compelled to place upon the statute of descent, we are unable to see how the statute of limitations can apply to the case. This may result in inconsistency and a want of harmony in the law. I have already stated (Wescott v. Miller, unreported), that if the question were unembarrassed by the doctrine of the Massachusetts cases, I never could give the statute of descent the construction which has been placed upon it by the courts of that state. But, for reasons already given in other cases, we feel bound by the judicial interpretation which the statute had received before it was adopted here. It results from these views that the decision of the circuit court must be affirmed. By the Court.-Judgment affirmed. BERRINKOTT VS. TRAPHAGEN and another, imp. BOND. (1) Penalty or liquidated damages? (2) Exercise of obligee's option on breach of bond; and notice thereof to obligor. 1. Before the bond secured by the mortgage in suit was made, the obligee and her husband conveyed to the obligor a farm, and in consideration of such conveyance said bond was executed, in the penal sum of $900, and conditioned that if the obligor, one year after the death of the obligee's husband, and annually thereafter during her natural life, should pay her the amount of the interest of $464 at seven per cent. per annum, the bond should be void; but if any default should be made in the payment of said interest on any day whereon the same was payable, and it Berrinkott vs. Traphagen and another, impleaded. should remain unpaid for thirty days, the principal sum of $464, with arrearages of interest, should, at the option of the obligee, become due and payable immediately; and that if the payments of interest were promptly made during the obligee's life, the debt and mortgage should cease at her death. Held, (1) That notwithstanding the mention of $900 as the penalty, the sum of $464 which the obligor covenants to pay upon breach, at the obligee's option, might in a proper case be treated as a penalty; and that in such case the measure of the obligee's recovery would be the gross value of the annuity when she declared her option, and arrears of interest. (2) That as said sum of $464 was not fixed to evade the usury law or other statutory provisions, or to cloak oppression, and as, independently of the stipulation, the damages would be uncertain, because the real value to this obligee of the payment of the stipulated annual interest cannot be determined by reference to any tables of mortality, or by any other means, said sum must be treated as liquidated damages, no facts appearing which would make it inequitable to enforce the contract according to its terms. [RYAN, C. J., dissents, holding that the principal sum named is obviously greater than the value of the annuity could ever be; that it must be presumed, in the absence of all proof, that the annuitant could purchase the same annuity elsewhere at reasonably certain market rates; that the cost of such annuity is the precise measure of her damages; and that under such circumstances the sum named in the bond should be treated as a penalty.] 2. The interest which became due on said bond on the 16th of September of each of three successive years remaining unpaid, the obligee, on the 25th of November of the last of said years, notified the obligor, in writing, of her election to consider the principal sum, with arrearages of interest, due and payable immediately. The obligee resided in Dane county, Wisconsin, and the obligor in Nebraska. Held, that the option given could be exercised within a reasonable time after any default; and that, under the circumstances, the notice was served within a reasonable time. APPEAL from the Circuit Court for Dane County. Action to foreclose a mortgage. In 1864, the plaintiff and her husband, Adolph Berrinkott (now deceased), conveyed to the defendant Henry Mausbach, their son-in-law, a farm in Dane county; and for the consideration or price of the farm, or for a portion of it, the grantee executed to the plaintiff a bond in the penal sum of $900, the condition of which is thus stated in the complaint: "The condition of the said bond Berrinkott vs. Traphagen and another, impleaded. was such that if the above named defendant, the obligor therein, should well and truly pay or cause to be paid unto the above named Sybilla Berrinkott, the plaintiff, her executors, administrators or assigns, one year after date of the death of Adolph Berrinkott (who was then the husband of the plaintiff), and annually thereafter during her natural life, the sum of the interest on the sum of four hundred and sixty-four dollars at the rate of seven per cent. per annum, then the said bond to be void, otherwise of force; and it was in said bond expressly agreed and conditioned that should any default be made in the payment of the said interest or any part thereof, on any day wherein the same was made payable by said bond, and the same should remain unpaid and in arrears for the space of thirty days, then and in that case the said principal sum of four hundred and sixty-four dollars, with arrearages of interest thereon, should, at the option of the said Sybilla, the plaintiff, become and be due and payable immediately thereafter, anything therein to the contrary notwithstanding; and it further thereby was expressly agreed that if the payments of said interest were promptly made after the death of the said Adolph and before the death of the said plaintiff, and during her natural life, then at her death said debt and said mortgage should cease and be null." At the same time the grantee and his wife, Margaretha, executed to the plaintiff the mortgage in suit to secure the performance of the conditions of such bond. Adolph Berrinkott died September 16, 1869. The interest or annuity which became due by the terms of such condition in 1870 and 1871, was paid; but no other or further payments on account thereof have been made. On the 25th of November, 1874, the plaintiff caused a notice in writing to be served on the defendant Henry Mausbach, declaring her election to consider the principal sum named in the bond, with arrears of interesf, due and payable presently. The appellants are subsequent incumbrancers. The foregoing facts appear from |