63 Wis. 134 | Wis. | 1885
It is conceded that the facts were correctly found. The only question presented is whether they are such as to entitle the plaintiffs to recover. Every claim “proper to be allowed,” not exhibited “ within the time limited for that purpose,” is forever barred. Sec. 3844, R. S.; Carpenter v. Murphey, 57 Wis. 541. Was the plaintiffs’ claim one proper to be allowed within the meaning of. that section?'
The principal named in the bond was adjudged in default,, and ordered to pay over the amount named, January 22, 1881. He failed to do so, and died insolvent before April 1, 1881. The liability of all the sureties, including Conrad Nau, became thereby fixed in favor of the obligee named in the bond, for the benefit of the persons entitled. Conrad Nau continued liable on the bond until he died, November 2, 1881. Thereupon his estate became hable. Sec. 3848, R. S. That section provides that when any two or more persons shah be indebted on any joint contract, and either of them shah die, his estate shah be hable therefor, and the claim may be allowed by the court as if the contract had been joint and several; and the other parties to such joint contract may be compelled to contribute or to pay the same,
The fact that the bond ran to the county judge did not prevent its being presented and allowed against the estate any more than it prevented the action being commenced in his name in the circuit court against the surviving sureties.
The liability against the estate of Nau on the bond was just- as fixed and absolute as it was against the plaintiffs; and the claim of $6,536.45 might have been presented against Nau’s estate within the time limited, and allowed for the full amount. Had it been so presented, allowed, and paid, then the plaintiffs might have been compelled to contribute to the estate their proportionate shares of such payment. But it never was so presented nor allowed. The right of contribution either in favor of the estate and against the plaintiffs, or in favor of the plaintiffs and against the estate, was contingent only upon payment. That contingency existed from the time when the liability of ail the sureties on the bond became fixed and absolute, .as above stated, until the plaintiffs made payment of the whole amount claimed on the bond, December Y, 1882, when it became absolute, unless the plaintiffs had previously lost all right to contribution by reason of the fact that neither the bond, nor the plaintiffs’ contingent claim for contribution, created by the execution of the bond, was presented against the estate within the time limited.
"Was the contingent liability of Conrad Nau and his estate for contribution in case of payment provable against Nau’s estate under our statute? Sec. 3858 provides in effect that if any person has any contingent claim against the estate of a deceased person “ which cannot be proved as a debt before the court or commissioners, or allowed by them, the same may be presented with the proper proof to the court or commissioners, and they shall embrace the same in a statement as provided in section 3842.” The statement
So sec. 3860 provides, among other things, in effect that if any such contingent claims have not been so presented, but have “ become absolute at any time after the time limited for creditors to present their claims, the person having such claim may present it to the county court, and prove the same at any time within one year after it shall . . . become absolute; and if established in the manner provided in this chapter, the executor or administrator shall be required to pay it, if he shall home sufficient assets for that purpose, and shall be required to pay such part as be shall have assets to pay,” etc. When the claim is proved under
Thus it appears that the plaintiffs had two opportunities for proving their claim against Nau’s estate for contribution. First. They could have proved it within the time limited, as a contingent claim under secs. 3858, 3842, and 3859. In that event they would have insured the collection of their whole claim out of the estate, or at least their proportionate share with other creditors. There was no more difficulty in proving such contingent claim against such estate than to prove such contingent claim in bankruptcy against a bankrupt’s estate. That can be done, as held by this court in Davis v. McCurdy, 50 Wis. 569, where the claim against a surety on a guardian’s bond was defeated by the discharge in bankruptcy, on the ground that it was provable against the estate of the bankrupt. Second. The plaintiffs had one year within which to prove their claim after it became absolute, but under that section they would have been obliged to take their chances as to getting the amount out of the estate. The year commenced December T, 1882, and terminated December 1, 1883. This action was commenced during the first portion of the year. Whether the plaintiffs presented and proved their claim after the commencement of this action, and before the termination of the year, does not appear. Certainly they misconceived their remedy in bringing this action.
The statute expressly prohibits the commencement of any action against an executor, “ excepting actions for the recovery of specific, real, or personal property, or actions to establish, enforce, or foreclose a lien or right of lien on real or
By the Qowrt.— The judgment of the county court is affirmed.