Batchelder v. Batchelder, 20 Wis. 452

Batchelder v. Batchelder

20 Wis. 452 | Wis. | 1866

Cole, J.

Tbe object of this suit seems to be to enforce tbe execution of a trust created by tbe will of Thomas Batchelder. He devised bis estate, real and personal, to bis wife and child, charged with tbe support and maintenance of bis mother, Jane Batchelder (who originally commenced this suit), during her natural life. Tbe appellant, tbe wife of tbe deceased, was appointed sole executrix of tbe will. It is alleged in tbe complaint that tbe appellant, since tbe first day of January, 1861, has utterly refused and neglected to make any provision for tbe support and maintenance of tbe plaintiff, and refuses to acknowledge and allow her right to support out of tbe property of tbe deceased. And, as already observed, tbe purpose of tbe suit is to execute this trust, by charging tbe real estate of *453tbe deceased, witb tbe maintenance and support of tbe plaintiff during ber natural life, and tbat tbe same may be disposed of and a certain sum out of tbe proceeds, to be ascertained by tbe court, be set aside for ber maintenance. One serious objection to tbe complaint' is, tbat although tbe action is brought against tbe appellant, yet it nowhere appears tbat she ever qualified or accepted tbe office of executrix. If she has not accepted tbat trust, then most manifestly she is not tbe proper person to execute tbe will. It is true, it is alleged tbat tbe appellant has sold and converted to ber own use tbe personal property of tbe deceased, and has continued in tbe occupation and possession of tbe real estate, enjoying tbe rents and profits thereof. But these acts, while they might show tbat she bad intermeddled witb tbe estate in ber own wrong, do not show tbat she ever took upon herself tbe office of executrix. Under our statute, tbe executor must do something more than interfere witb tbe effects of tbe deceased, to show tbat be accepts tbe appointment; be must signify to tbe county court bis acceptance of tbe trust (sec. 15, chap. 97, R. S.), and give tbe bond required by chap. 98. Before be does this be cannot be said to have qualified and accepted tbe trust. Now as this suit is to compel tbe executrix to perform tbe trust, it ought at least to appear tbat she has qualified as executrix under tbe will. If she has not qualified, or refuses to qualify, then it is very obvious tbat an administrator witb tbe will annexed should be appointed by tbe county court to execute tbe trust. And we will remark further tbat there are no special facts stated in the complaint to show any necessity for a court of equity assuming jurisdiction over this estate and executing tbe trust. W e cannot see why full and ample relief might not have been obtained from tbe county court, which has jurisdiction over tbe settlement of estates. Perhaps a court óf equity, notwithstanding our statute giving county courts general jurisdiction over cases of administration, may still entertain jurisdiction over those cases, and compel tbe execution of trusts created by wills. But it *454seems to us that it is the policy of our law that a court of equity should not entertain jurisdiction where a complete, adequate •and full remedy can be obtained from the county court. What difficulty there may be in obtaining an order from the county court directing the appellant (if she has qualified as executrix) to pay over a sufficient amount out of the assets in her hands to support the mother of the deceased, we cannot imagine. It seems to us that this would afford an ample remedy, without coming into a court of equity. And of course the administrator of the mother can obtain the same relief from the county court, if it appears that his intestate left any debts which should b.e paid by this provision made for the mother in the will.

Eor these reasons we think the complaint defective, and that the demurrer to it should be sustained.

By the Court. — The order of the circuit court overruling the demurrer is reversed, and the cause remanded for further proceedings according to law.