209 Wis. 224 | Wis. | 1932
This action was brought to recover from Herman Ringer as principal, and defendants C. D. Nelson and Ernest G. Gross as sureties, on an administrator’s bond in the usual form running to plaintiff as county judge, and conditioned among other things upon the administrator rendering a true account of his administration and performing all orders and judgments of the county court. In May, 1930, ’ Herman Ringer was appointed administrator of the estate of his son, Clarence H. Ringer, on a petition by Herman in which he alleged that he was the father and next of kin and heir at law of Clarence. The latter had died in 1919, and was survived by his parents Herman and Emma Ringer, and some brothers and sisters. His estate consisted solely of a federal war risk insurance certificate for $10,000, in
At the hearing on October 21, 1930, the administrator testified that he was the sole heir, and the final decree, then entered, assigned the estate to him as such heir. He was not then interrogated as to who were the members of his family, or as to his or Clarence’s relatives, and he did' not give any false testimony in those respects. His testimony that he was the sole heir as to the proceeds of the federal insurance certificate was not a statement as to a mere matter of fact. It .involved rather a mixed question of fact and law, and to answer correctly involved not merely the facts as to the family relationship and whether the- mother died before or after Clarence, but also legal knowledge as to terms and correct interpretation of, the federal statutes in relation to such certificates, as well as the state law of inheritance. On October 22, 1930, in compliance with that final decree, the net proceeds of the estate of Clarence were duly paid to his father in his individual capacity, as the sole heir. On Febru
On the trial of this action in the circuit court, the learned circuit judge did not find, as was contended for on behalf of plaintiff, that Herman Ringer committed any fraud on the county court, but, instead of so finding, the circuit judge rightly said that the county judge’s letter of October 6, 1930, indicated that he then knew about the children. The circuit judge concluded that the county court could vacate the final decree of October 21, 1930, as to the parties to it because the
Manifestly, in so far as the final decree of the county court, as first entered, was incorrect in that it adjudged that Herman Ringer was the sole heir, and as such heir entitled to the distributable property of the estate, consisting solely of the proceeds of the war risk insurance certificate, it was erroneous because of a mistake of law on the part of the county judge. As is disclosed by his letter of October 6, 1930, the latter had knowledge, when he ordered the entry of that decree, of the fact that there were children, whom he referred to in his letter as “some of the Ringer heirs.” Under the circumstances, Herman Ringer’s testimony on October 21, 1930, that he was the heir at law of the proceeds of the war risk insurance certificate did not constitute a
Consequently, as no fraud was committed by any person in connection with the entry of the final decree on October 21, 1930, it cannot be held that that decree was procured by fraud, or that it could be set aside because of fraud. That .being true, the actual payment by Herman Ringer as administrator to himself in his individual capacity, pursuant to and in compliance with that final decree, and while it was in force and effect, constituted proper performance on his part under the court’s order and judgment, and was therefore in full compliance with,1 and not a breach of, the ad
Plaintiff also contends that the judgment fails to comply with sec. 321.03, Stats., in that it fails to specify the amount due to each heir for whose benefit the action on the bond was brought by plaintiff. That contention does not seem to have been urged in the trial court, and as Herman Ringer has not appeared on this appeal it is not opposed at this time. Upon Emma Ringer’s death, half of the unpaid benefits under the war risk insurance certificate was the property of her estate, payable to the administrator of her estate, and subject as. any other of her property to the payment of the expense of her funeral and grave marker. Schneider v.
By the Court. — Judgment affirmed as to the respondents Nelson and Gross, with costs against plaintiff; and cause remanded with directions to otherwise modify the judgment as directed in the opinion, without costs in this court.