Brill v. Estate of Ide, 75 Wis. 113

Brill v. Estate of Ide

75 Wis. 113 | Wis. | 1889

Cole, C. J.

This court has frequently held that, to bar a claim against an estate, the provisions of a statute upon the subject must be substantially complied with. In this case the county court, upon the application of the executor, made an order on the 5th day of May, 1887, requiring creditors to present their claims and demands to the court for examination and allowance within six months from that. date. Rut the order did not appoint or designate any *115time and place when and where the court would receive, examine, and adjust such claims, as is required by sec. 3839, R. S. That section expressly provides that the county court shall appoint convenient times and places when and where the court or commissioners will receive, examine, and adjust claims against the estate. The language is clear and distinct, and evidently contemplates that the order itself shall designate or fix “ the times and places ” for such examination of claims. It is true the order further provided that notice of the time and place when and where the court would receive, examine, and adjust the claims should be given by publishing the same in the newspaper named; accordingly a notice, signed by the county judge, which did designate such times and places, was published. But this designation of the “times and places” in the published notice did not, and could not, operate to cure the defect in the original order, which omitted these important requisites. Eor, as we have said, the statute contemplates that the “ times and places when,” etc., shall be stated in the order itself, and thus become a part of the records, to which interested parties may resort for information.

But there is a further objection to the notice as published, which is that it attempts to enlarge the time within which claims could be presented. By the order creditors were limited to six months from May 5th. The time would of course expire on the 5th of the following November. But the published notice is that the county court will, on the first Tuesday of July, being the 5th day of the month, and on the first Tuesday, being the 6th day, of December, 1887, at the probate office in the city of Stevens Point, Wis., receive, examine, and adjust the claims of all persons against the estate of the deceased. Thus the published notice and order are in direct conflict as to the limitation of the time for the presentation of the claims. There should be no such *116confusion or uncertainty in the proceedings which bar a creditor of his right to collect a claim against an estate. The statute does not sanction or warrant it. It is said the county judge had no power to give this notice, and appoint the times and places where claims would be received, but that these things should be fixed by the court itself. We have already indicated that this is a correct view of the statute, and that the “ times and places when,” etc., should be set forth in the order made by the court. In Ashley v. Eggers, 59 Wis. 563, it was claimed that the county court should give the notice, but the point was not there decided, and it is not necessary to decide it here. The defective order and notice cannot operate to limit or bar the right of a creditor to present his claim against the estate for examination or allowance. The proceedings have been so irregular and defective that no such legal consequences can be attached to them. It follows, from this view, as -the time for the presentation of claims against the estate has not been legally limited, the county court had power, under sec. 3840, R. S., to make an order to examine and adjust a claim, as it did do by the order of April 4, 1888. Large v. Large, 29 Wis. 60.

By the Court.— The order of the circuit court is affirmed.