Betts v. Shotton

| Wis. | Jan 15, 1871

Dixon, C. J.

The real estate of Thomas Shotton, deceased, was sold by Gunn, acting as administrator under the license and order of the probate court of the proper county, for the payment of the debts of the deceased and the charges of administering his estate. It was sold under and in pursuance of the provisions of chap. 94 of the Revised Statutes. The order or license for the sale was granted on the 4th day of February, 1861. The sale took place, and was reported to the county court sitting in probate on the 25th day of the same month. The sale was confirmed, and a deed directed ■ to be executed by the court, on the 26th day of February, 1861; and the deed was at the same time executed and delivered by the administrator, or Gunn acting as such. The petition in which this appeal originated, to re-open all the proceedings in the county court, from and including the appointment of Gunn as administrator, down to and including the sale of the lands by him, the order of confirmation, and the conveyance thereupon executed, and to have the same and all of them declared null and void, was presented by the petitioner, John Shotton, as the brother and sole surviving heir-at-law of Thomas Shotton, deceased, to the county court, in probate, on the 24th day of October, 1868, and more than seven years after the making and confirmation of the sale and the execution and delivery of the deed.

Section 60 of the statute under which the sale was ordered, made and confirmed, declares, subject to the exception contained in section 61 in favor of minors and others under legal disability, that “ no action for the recovery of any estate sold by an executor or administrator, under the provisions of this chapter, shall be maintained by any heir, or other person claiming under the deceased testator or intestate, unless it be commenced within five years next after the sale.

It thus appears that the petitioner, by this proceeding to revise and correct errors in the probate court, is attempting to avoid the clear effect and operation of this statute of limitation, by which all remedy on his part to recover the lands themselves, by ejectment or other action directly against the claimant, is cut off and barred. The question, therefore, is, whether the statute of limitation, which was intended to put an end to all controversy after the lapse of five years, can be evaded in this way; or whether the power of the probate court to re-open and re-examine its former orders and decrees, and to correct mistakes and irregularities, extends to such a case. We are clearly of opinion that it does not, and that it cannot be resorted to for purposes like this. Nor was it the intention of this court to hold otherwise in the case In re Fisher, 15 Wis. 511" court="Wis." date_filed="1862-09-01" href="https://app.midpage.ai/document/in-re-the-estate-of-fisher-6598738?utm_source=webapp" opinion_id="6598738">15 Wis. 511. In Heirs of Smith v. Rix, 9 Vt. 240" court="Vt." date_filed="1837-02-15" href="https://app.midpage.ai/document/heirs-of-smith-v-rix-6571934?utm_source=webapp" opinion_id="6571934">9 Vt. 240, it was held that the court of probate, by petition for that purpose, might correct errors in its former decrees, after any lapse of time short of twenty years, where the interest of the parties only was concerned. This was a recognition of the principle that the court could not overstep or go beyond the statutory period of limitation fixed in the particular case. And in French v. Winsor, 24 Vt. 402" court="Vt." date_filed="1852-03-15" href="https://app.midpage.ai/document/french-v-winsor-6574805?utm_source=webapp" opinion_id="6574805">24 Vt. 402, and Adams v. Adams, 21 Vt. 162" court="Vt." date_filed="1849-01-15" href="https://app.midpage.ai/document/adams-v-adams-6574038?utm_source=webapp" opinion_id="6574038">21 Vt. 162, it was in substance held, that the power was confined to cases still pending in the probate court, or, if not so pending, to cases of fraud, accident or mistake in the settlement of executors’ and administrators’ accounts. And see also, Withers v. Patterson, 27 Tex., 491" court="Tex." date_filed="1864-07-01" href="https://app.midpage.ai/document/withers-v-patterson-4890162?utm_source=webapp" opinion_id="4890162">27 Texas, 491. In any event, we do not think the power can be exercised in a case like this, where the statute of limitation has run so as to give good title to the land under the deed of the administrator, and where administration of the estate was closed, and third persons had become interested in the property sold.

And we are furthermore of the opinion, that the respondent in this court, Betts, who was the appellant in the circuit from the order of the county court, was a person aggrieved by such order, within the meaning of the statute, and so was entitled to take and jarose-cute the appeal. R. S. ch. 117, § 24. He was directly interested, to the full extent of his title, in the question whether the order should stand and be adjudged in the law valid and effectual, or not.

The order and determination of the circuit court reversing the order of the county court must be affirmed.

By the Court. — It is so ordered.