Davis v. Davis, 137 Wis. 640

137 Wis. 640 | Wis. | 1909

Keewiw, J.

As appears from the complaint, the respondent here seeks an accounting and prays recovery of the alleged portion of the estate of Melson J. Davis which was-not distributed or received by her, but passed into the possession of William H. Davis, and the question arises whether the complaint states a cause of action. Quite a full statement of the complaint is set out in the statement of facts and need not be repeated here. Both estates were settled and distributed in county court, the domiciliary administration on the estate of William H. Davis being in Minnesota and the ancillary administration in Milwaukee county, Wisconsin, and the residue assigned to the appellant. The respondent now in this action claims an interest in the estate of William H. Davis which was never accounted for by him,, but which was received by the respondent, who claimed his property by devise. The general question of laches, independent of any statutory bar to this action, is argued by appellant’s counsel at great length, and it is insisted that the respondent is bound because of her laches in failing to proceed against either of the estates to enforce her claim during the administration of such estates and before final distribution. We do not regard it necessary to rest this case upon any general doctrine of laches, but rather upon our statutes and decisions thereunder. Sec. 3840, Stats. (1898), provides that at the time of granting letters testamentary or of administration the county court by order shall fix a time, not less than six months or more than one year thereafter, within which creditors shall present their claims for allowance, and further provides for giving notice; and sec. 3844, Stats. (1898), provides that every person having a claim against a deceased person, proper to he allowed hy the court, who shall not, after notice given as required hy sec. 3840, exhibit his claim to the court within 'the time limited for that purpose,, shall be forever barred from recovering such demand or irons setting off the same in any action whatever. Sec. 3840 provides for the giving of notice, hearing, and adjustment of claims. So far as appears from the allegations of the complaint the respondent had ample opportunity to present her claim against the estate of William H. Davis in the ancillary administration in Wisconsin. This court has held that the provisions of sec. 3844, Stats. (1898), apply to nonresident as well as to resident creditors, and to property and rights involved in an ancillary administration as well as to those in a domiciliary administration, at least so far as the courts of this state are concerned, and a creditor who fails to present his claim in an ancillary administration in this state within the time limited cannot maintain an action here against an heir of the decedent after the time for presenting claims has expired. Winter v. Winter, 101 Wis. 494, 77 N. W. 883; Carpenter v. Murphey, 57 Wis. 541, 15 N. W. 798; Austin v. Saveland's Estate, 77 Wis. 108, 45 N. W. 955; Field v. Estate of Mundy, 106 Wis. 383, 82 N. W. 343.

It appears from the allegations of the complaint that the ancillary administration was closed and the property of the estate of William H. Davis distributed by final order before the commencement of this action, and in the absence of anything appearing in the complaint to the contrary it must be; presumed that the time was limited for creditors to present their claims and notice duly given. Lannon v. Hackett, 49 Wis. 261, 5 N. W. 474. Under sec. 3838 it being the duty of the county court to receive, examine, and adjust all claims against the estates of deceased persons, the right to bring an action against the executor or administrator is taken away, unless the court fails to fix a time within which claims may be presented or to giye notice, and, if the time was not fixed ■■and notice given as provided by statute, it should be made to appear in the complaint, since in such cases an action can only be maintained where facts exist taking the case out of the general rule, namely, that the settlement of the estate and bar of the claim in county court is conclusive. Lannon Hackett, supra; Bostwick v. Estate of Dickson, 65 Wis. 593, 26 N. W. 549.

It is, however, insisted by counsel for respondent that sufficient facts and circumstances are stated in the complaint to take the case out of the general rule, and this argument is based upon the idea that the claim set forth in the complaint is a contingent and not an absolute claim and therefore was not barred by the administration proceedings. In the case before us we are clear that the claim set up in the complaint is not a contingent claim. The mere fact that an accounting is necessary to determine the amount due does not make a claim a contingent claim. A contingent claim is one which may never accrue. 9 Cyc. 73. A contingent claim is one where the liability depends upon some future event which may or may not happen and therefore makes it uncertain Avhether there ever will be a liability. Sargent's Adm'r v. Adm'r of Kimball's Estate, 37 Vt. 320; Austin v. Saveland's Estate, 77 Wis. 108, 45 N. W. 955; Mann v. Everts, 64 Wis. 372, 25 N. W. 209; South Milwaukee Co. v. Murphy, 112 Wis. 614, 88 N. W. 583; Brown’s Ex'r v. Dunn's Estate, 75 Vt. 264, 55 Atl. 364. What constitutes a contingent claim is very clearly stated in the case of South Milwaukee Co. v. Murphy, supra, as follows:

“If a liability exists, but it is uncertain whether it will •ever be absolute in the sense of being enforceable, it is contingent within the meaning of the statute. The terms ‘debt/ ‘absolute debt,’ ‘liability,’ and ‘absolute liability’ are used in tbe authorities in a way to confuse and lead to wrong deductions if one does not keep in mind that the essential element of a contingent claim is uncertainty as to whether it will ever be enforceable. True, so long as a debt is absolute it is not contingent, but it is not absolute if its enforceability is dependent upon a contingency that may never happen.”

We think it clear upon the facts stated that the respondents claim should have been presented in the county court before the estate of William JEE. . Davis was closed and distributed. That court had jurisdiction of it. Tryon v. Farnsworth, 30 Wis. 577, 581; Lannon v. Hackett, 49 Wis. 261, 5 N. W. 474; Batchelder v. Batchelder, 20 Wis. 452; Hawley v. Tesch, 72 Wis. 299, 39 N. W. 483; Gianella v. Bigelow, 96 Wis. 185, 71 N. W. 111. Counsel for respondent relies upon Logan v. Dixon, 73 Wis. 533, 41 N. W. 713; Blakely v. Smock, 96 Wis. 611, 71 N. W. 1052; and Stehn v. Hayssen, 124 Wis. 583, 102 N. W. 1074, and the-argument is that there are special circumstances which take the present case out of the general rule. But it being established that the claim is not a contingent one and that there is no necessity of bringing in parties who were hot before the ■ county court at the time of the settlement of the estate, or any other special circumstances set up in the complaint which would take the case out of the general rule, no case is made upon the allegations of the complaint.

It will be seen at once by an examination of the cases cited by respondent that they are not applicable here. In Logan v. Dixon, supra, the claim was a contingent claim and not capable of adjustment until after settlement of the estate, ■and Blakely v. Smock and Stehn v. Hayssen, supra, are cases where it was necessary to bring in third parties.

■ The distinction between such cases and the instant case is pointed out by this court in Gianella v. Bigelow, 96 Wis. 185, 71 N. W. 111. None of the difficulties encountered in the cases relied upon by respondent are present here. The whole matter was between the respondent and the estate of William H. Davis. There are no special circumstances shown in the complaint which in any way interfered with or embarrassed the presentation, examination, and adjustment of the respondent’s claim, if she had any, in the county court in the ancillary administration of William H. Davis’s estate. It follows, therefore, that the complaint states no cause of action and the court below, was in error in overruling the demurrer.

By the Court. — The order appealed from .is reversed, and the action remanded with directions to sustain the demurrer to the complaint