Burnham v. Norton
75 N.W. 304
Wis.
1898
Check Treatment
Marshall, J.

Of numеrous exceptions taken to the findings of fact and conclusions of law, and errors assigned, none, in our judgment, require discussion in this opinion except those presenting the following questions, viz.: (1) Did the court err in exercising jurisdiction in this action ? (2) Ought appellant to have been allowed the $50 paid Jane A. Hills August 10,1891, and $100 paid December 1,1891 ? (3) Did the court, in stating the account, fail to allow appellant the payments made in 1886 and 1887, aggregating $469, in accordance with the findings of fact ? (4) Ought appellant to *12baye been charged with interest on the government bonds ? These questions will be considered in the order stated.

1. It is too well settled to require discussion here, that circuit courts, by virtue of their genеral equity powers, with some exceptions, have original jurisdiction concurrent with county courts over matters pertaining to the settlement of the estates of deceased persons (Tryon v. Farnsworth, 30 Wis. 577), though where such concurrence, exists, generally speaking, that of the county courts is held to supersede that of the circuit courts, so that the latter should decline to exercise such jurisdiction in the absence of special facts or circumstances rendering the power of the county courts not sufficiently broad and comprehensive to furnish as complete and efficient a remedy as that to be found in the circuit courts. To this ‍‌​​‌​​​‌​​​‌‌‌​‌​‌‌​​​​‌‌​​‌‌​‌‌​​‌‌‌‌​‌​‌‌‌‌​‌​‍there are some exceptions, not including, however, such cases as the one before us. The most frequent to be met with are cases for the construction of wills. Jurisdiction of such matters has been uniformly exercised by the circuit court, though specially сonferred on county courts by statute. So it is said that nothing short of an express statute on the subject can change the practice in that regard. Mr. Justice Orton, in Catlin v. Wheeler, 49 Wis. 507, speaking for the court, said: ‘ The jurisdiction of a court of chancery, of the execution of trusts in the payment of legacies, has been too long exercised to be now questioned; and no court except one of plenary and general jurisdiction in equity can so well and so fully exercise it in such a case, to the end sought. So though county courts have jurisdiction of such matters, concurrent with the circuit courts by force of the statute, it will take a statute framed in the clearest and most unmistakable language in order to make such jurisdiction of the county courts in probate supersede that of the circuit courts.’

With exceptions as stated, the doctrine that, where the *13jurisdiction, of the county and circuit courts in the settlement of the estates of deceased persons is сoncurrent, the former supersedes the latter, by long-established practice has become so firmly fixed in our jurisprudence that, where the circuit court ought clearly to decline jurisdiction, it is reversible error to exerсise it even though the question be not raised by answer or demurrer and the objection be in all respects waived, .the case in such situation standing the same in that regard as one where the court has no jurisdiction of the subject mаtter. That is the effect of the decision in Meyer v. Garthwaite, 92 Wis. 571, where this court said that the circuit court should decline to take jurisdiction, even if a cause of action which is within its general equity powers is stated, and notwithstanding the question of jurisdiction be waived, unless the facts render the remedy which is within the competency of a county court inadequate and incomplete. That, however, is but the statement, in different language, of the rule laid down in Batchelder v. Batchelder, 20 Wis. 452, where Mr. Justice Corns, speаking for the court, said that an action in the circuit court to enforce a trust under a will that was in process of being probated in the county court was ‍‌​​‌​​​‌​​​‌‌‌​‌​‌‌​​​​‌‌​​‌‌​‌‌​​‌‌‌‌​‌​‌‌‌‌​‌​‍improperly brought, no special facts being stated showing that full and ample relief could not be afforded in the county court. The same doctrine, and to the full extent expressed in Meyer v. Garthwaite, supra, was recently affirmed in In re Klein, 95 Wis. 246, where Mr. Justice Pinney, speaking for the court on the subject, said: “ This court has held that the circuit court should declinе to take jurisdiction even of a cause of action within its general equity jurisdiction, notwithstanding the question of jurisdiction has been waived by omitting to raise it by answer or demurrer. That rule is correct as a matter of practice аnd sound policy, and should not be departed from. It is founded upon the ground that there is a proceeding already pending in a court of competent jurisdiction to afford complete *14relief, and an independent action for that purpose is wholly unnecessary and therefore will not be sustained.” Keeping in mind what has been stated to the effect that actions to construe wills are an exception to that, doctrine, will avoid an otherwise apparent conflict between cases of that kind and the one under consideration.

So the question on this branch of the controversy is, Are special facts pleaded or shown sufficient to bring the case within the rule stated ? It is said that the term, “ a remedy as complete and efficient,” is referable, among other elements, to that of time, expense, and multiplicity of suits. It is a term of broad and comprehensive meaning, so that, necessarily, much latitude must be given to the trial court in determining its jurisdiction on the facts of each case as presented; and in instances of doubt as to the rightfulness of such determination, such doubts should be resolved in favor of such dеtermination. The trial court, in short, should be sustained unless wrong beyond reasonable controversy.

Applying the foregoing to the facts before us, we are unable to say that the court erred in retaining the case and proсeeding to a final determination of it. One of the most important matters in controversy was whether the real estate of which Jane A. Hills died seised was a part of the estate of Thomas H. Hills. The relief sought, in part, was to pass the title to such real estate over to the rightful owners under the will of Thomas H. Hills; that was not obtainable in the county court, though essential to a ‍‌​​‌​​​‌​​​‌‌‌​‌​‌‌​​​​‌‌​​‌‌​‌‌​​‌‌‌‌​‌​‌‌‌‌​‌​‍complete remedy for the wrongs of which plaintiff complained, so had she proceeded in the county court and obtained a settlement of the executor’s' accounts, it would still have been necessary to proceed in the circuit court to obtain title to the land. That was sufficient of itsеlf to support the exercise of jurisdiction by the circuit court. Whether the judgment is effective to give the relief which plaintiff desires, since the legatee under the will of Jane A. Hills was not a party to the action, is a ques*15tion with whiсh we have nothing to do on this appeal. Error was assigned on the refusal of the trial court to bring in such legatee as a party, but she is not complaining, and it is not perceived how appellant can be prejudiced by such refusal. Again, the estate of Jane A. Hills being in process of settlement in the county court of Eock county, and that of Thomas H. Hills in the county court of Green county, and the relief sought really requiring a settlement of apрellant’s accounts in both estates, that was sufficient justification for the exercise of jurisdiction by the circuit court, to the end that the whole controversy might be settled in one suit in one court.

2. The $150 which the court refused to crеdit the executor appears by his own testimony to have been given to Jane A. Hills, not paid to her out of the estate. True, the evidence would reasonably support a finding that the money was paid with the intention of charging the same to Mrs. Hills on account of the estate at some future date, but it also reasonably supports the finding that it was given outright, and without any intention of ever so charging it, and that the claim for credit was purely an afterthought. No voucher was produced to show the payment of either of the sums making up the $150, and no account appears to have been made of it by the executor. Under such circumstances we are unable to say thаt the evidence clearly preponderates against the decision of the trial court.

As to the failure to credit the $469 which the court said was actually paid by appellant to Jane A. Hills in 1886 and 1887, in stating the account, whiсh all agree was the basis of the court’s final conclusion, we find, on examining the statement found in the record, that credit was given in strict accordance with the findings.

4. ¥e are unable to perceive why appellant was сharged with interest on the government ‍‌​​‌​​​‌​​​‌‌‌​‌​‌‌​​​​‌‌​​‌‌​‌‌​​‌‌‌‌​‌​‌‌‌‌​‌​‍bonds. The testimony is positive and all one way that the coupons were received di*16rectly by Jane A. Hills, and that appellant never bad a dollar from or on account of them. Therе is no pretense that she had any money except that invested in the real estate and the improving of it, to which she was not entitled under the terms of the will. The entire income from the estate, and so much of the principal as was necessary for her support, she was entitled to; therefore, when she received the coupons, and there is no controversy but that she did receive them, she got what was rightfully hers, so no good reason can bе given, it seems, why appellant should be held liable therefor. True, the evidence on the subject of her receiving the interest is substantially all by appellant, but it is positive and reasonable, and there is nothing to warrant its being disregarded, therefore it should have received controlling weight in determining the question.

In order to correct the error made by erroneously charging appellant with interest on the government bonds it is necessary to credit him with such intеrest, and with interest thereon from the death of Thomas H. Hills down to the time of the trial, on the same basis the account was made up by the trial court. The necessary amount of such credit is approximately $2,321.10. Thereby it is found that thе estate is in debt tó appellant $1,040.01.

The findings to the effect that the property inventoried by appellant as belonging to the estate of Jane A. Hills in fact is a part of the estate of Thomas H. Hills, and, subject to the paymеnt of certain claims against the estate of Jane A. Hills mentioned in the finding, should go to the residuary legatees of Thomas H. Hills, to wit, one half to plaintiff and one half to the heirs of Polena A. Hills, appear to be warranted by thе evidence, except so far as affected by the fact that the estate of Thomas H. Hills is now found to be indebted to the appellant as stated.

The result of the foregoing is that the judgment appealed ‍‌​​‌​​​‌​​​‌‌‌​‌​‌‌​​​​‌‌​​‌‌​‌‌​​‌‌‌‌​‌​‌‌‌‌​‌​‍from must be reversed and the cause remanded with direc*17tions to adjudge that there is due appellant from the estate of Thomas H. Hills, on a just and true accounting of his doings as executor of the last will and testament of said Hills, $1,040.07; that the prоperty of which Jane A. Hills died seised, inventoried by appellant as her estate, is property of the estate of Thomas H. Hills, and, subject to the claims of creditors of Jane A. Hills specified in the findings and whatever rights appellant has by or on account of his having paid to Jane A. Hills $1,040.07 in excess of the amount received by him from the estate of Thomas H. Hills, belongs, under the will of Thomas H. Hills, one half to plaintiff and one half to the heirs of Polena A. Hills; and with further directions that neither party be allowed costs in the trial court.

By the Gowrt.— So ordered, and that appellant be allowed full costs in this court.