Franklin v. Killilea

| Wis. | Oct 24, 1905

SiEBEcaasat, J.

The court awarded judgment for the full ■amount due on the note against Henry J. Killilea, as administrator of the estate of Margaret Haulin, deceased. It is without dispute that administration of decedent’s estate was ■properly instituted, and that the time limited by order of the court for presenting claims against the estate expired the second Tuesday of March, 1902. This limit of time for the filing of claims against the estate was not extended by the •court. The plaintiff filed no claim against the estate on the note in question. It has been repeatedly held that all claims against estates must be made and exhibited to the court within the time limited by the court, and under sec. 3844, Stats. 1898, a person failing to so present a claim is to be “forever barred from recovering such demand or setting off the same in any action whatever.” Carpenter v. Murphey, 51 Wis. 541, 15 N.W. 798" court="Wis." date_filed="1883-05-31" href="https://app.midpage.ai/document/carpenter-v-murphey-6604090?utm_source=webapp" opinion_id="6604090">15 N. W. 798; Winter v. Winter, 101 Wis. 494" court="Wis." date_filed="1899-01-10" href="https://app.midpage.ai/document/winter-v-winter-8186119?utm_source=webapp" opinion_id="8186119">101 Wis. 494, 17 N. W. 883; Pereles v. Leiser, 119 Wis. 347" court="Wis." date_filed="1903-10-20" href="https://app.midpage.ai/document/pereles-v-leiser-8187746?utm_source=webapp" opinion_id="8187746">119 Wis. 347, 96 N. W. 799. Such a bar is as effectual as a payment. It cuts off any remedy for its enforcement, and extinguishes the right of action on a claim which might have been presented against the estate. Eingartner v. Illinois S. Co. 103 Wis. 373" court="Wis." date_filed="1899-06-02" href="https://app.midpage.ai/document/eingartner-v-illinois-steel-co-8186323?utm_source=webapp" opinion_id="8186323">103 Wis. 373, 79 N. W. 433. The time for exhibiting a claim against an estate, to fix personal liability on a note, comes within the provisions of this section.

It is asserted that this is an after-accrued claim, and that it could therefore be presented within one year after it accrued, under sec. 3860, Stats. 1898. How this claim can be treated ;as having, accrued after the time limited for creditors to present claims against tbe estate is not suggested. Tbe note became due in November, 1896. Payment of it under tbe most favorable view of tbe evidence was not extended beyond November, 1899, while tbe time for presenting claims against tbe estate of tbe maker did not expire until March, 1902, leaving a period of over a year wherein it could have been presented against tbe estate before tbe time for presenting it expired.

Some claim is made that, if tbe deceased was guilty of a fraud by wrongfully obtaining and recording the release, a recovery of tbe amount of this debt could be based on this fraud. It is perfectly obvious that tbe claim .upon which recovery is based is tbe debt evidenced by tbe note and mortgage, and that tbe alleged fraudulent conduct of tbe debtor in securing tbe release is only involved as showing that the mortgage given to secure tbe payment of the debt is still a valid and subsisting lien on which plaintiff can rely to enforce payment of her claim. Under these circumstances the provisions of sec. 3860, Stats. 1898, can have no application to this case, and tbe failure to file a claim based on tbe note against tbe estate of Margaret ITanlin, deceased, within tbe time limited by the order of tbe court, extinguished all right to a claim against tbe estate of tbe deceased, and no judgment could properly be rendered against Henry J. KiUilea, as administrator of her estate. Judgment dismissing tbe complaint as against tbe administrator should have been awarded.

It is contended that tbe evidence of T. W. Byrnes is incompetent under sec. 4069, Stats. 1898, in respect to any personal transactions and communications with Margaret Han-lin, since deceased, regarding tbe execution and delivery of tbe release, upon tbe ground that be is the person through, from, or under whom tbe parties derived an interest or title to tbe subject matter of tbe litigation. He is not a party to tbe action, nor is be in any sense connected with- tbe subject of tbe action, as a person from, through, or under whom either party derived any interest or title or sustains any liability. I-Ie is a stranger to the action, and bears no such relationship to the cause of action as to bring him within the disqualifying terms of the statute. The court properly received his evidence of the transactions covered by his testimony.

Error is assigned upon the findings of the court to the effect that Byrnes acted for Mrs. ITanlin in securing extensions of time for the payment of the balance on the note and in making interest payments for her, that the release was delivered by Walworth to Byrnes upon condition that it should not be delivered by him until the debt evidenced by the note and mortgage was paid in full, and that the release was executed and placed in the custody of Byrnes without authority or knowledge thereof by the plaintiff. The evidence bearing on these findings is not involved in any serious conflict, and plainly warrants the inferences given it by the court, and affords no basis for the claim that these findings are against the clear preponderance of the evidence.

It is also strenuously insisted that the evidence produced is not sufficient to clearly establish the invalidity of the release. In support of this contention it is claimed that the evidence of 'Byrnes is substantially the only proof on the subject and that he is discredited by his misconduct and the facts and circumstances of the case. True, this witness is not free from criticism in his dealings with the deceased and the breach of confidence as custodian of the release. His evidence of the transaction is, however, strongly corroborated by direct testimony and by circumstantial evidence bearing on the transactions involved. It clearly appears that plaintiff and her husband in his lifetime did not know that a release had been executed and delivered to Byrnes upon the condition specified, and the proof is without dispute that Wal-worth executed- and delivered it to Byrnes without authority from Franklin. The facts that the release was put on record and that Mrs. Hanlin’s daughter, immediately after it was recorded, mortgaged the premises, and that Mrs. Hanlin bad abundant means wbicb sbe could readily apply to tbe payment of tbe note, are all in corroboration of Byrnes’s version of tbe transactions and bis dealings with Mrs. Hanlin and of tbe delivery of tbe release at her request upon tbe promise that sbe would soon pay tbe note in full out of other funds available to her. Under this state of tbe facts tbe court would not be justified in disregarding bis evidence. Tbe finding that tbe release was obtained from Byrnes and recorded without payment of tbe debt and for tbe fraudulent purpose of discharging plaintiff’s mortgage lien on this property is abundantly supported by clear and convincing proof. It must stand as a fact in tbe case.'

It is urged that tbe judgment is contrary to tbe law of tbe case, upon tbe ground that tbe proof does not show that Wal-worth parted with tbe possession of the document and all right and authority to control it forever. To constitute a valid deposit of tbe release with Byrnes, upon tbe condition that be deliver it when tbe note was paid in full, it was not required that Walworth should then part with all control over tbe document for all time. Tbe essential requirement is that he who makes tbe deposit

“part with all present or temporary right of possession and!, control, until the happening of some future event or tbe performance of some future condition, upon tbe happening or-not happening or performance or nonperformance of wbicb his right of possession may return and bis dominion and| power over [it] be restored, in wbicb case the delivery is said! to be contingent or conditional. An essential characteristic and indispensable feature of every delivery, whether absolute or conditional, is that there must be a parting with tbe possession of tbe power and control over tbe [paper] by tbe grantor for tbe benefit of the grantee, at the time of delivery Prutsman v. Baker, 30 Wis. 644" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/prutsman-v-baker-6601020?utm_source=webapp" opinion_id="6601020">30 Wis. 644.

We think tbe evidence sustains tbe conclusion that Wal-worth parted with tbe power and control of the release at tbe time lie delivered it to Byrnes, and bis right of possession could only be restored upon the nonperformance of the condition of the deposit. It is clear that the paper was delivered by Byrnes contrary to the condition of the deposit, and it therefore never had any force or effect, and “no right under •the same . . . [could] be acquired by any one, however innocent, or for value, unless the signer’s conduct . . . [was] so characterized by negligence as to estop him against an innocent holder from denying responsibility upon the paper.” Rehbein v. Rahr, 109 Wis. 136" court="Wis." date_filed="1901-02-26" href="https://app.midpage.ai/document/rehbein-v-rahr-8186858?utm_source=webapp" opinion_id="8186858">109 Wis. 136, 85 N. W. 315. There is nothing in the evidence characterizing Mr. Walworth’s acts as negligent in selecting the custodian. Walker v. Ebert, 29 Wis. 194" court="Wis." date_filed="1871-06-15" href="https://app.midpage.ai/document/walker-v-ebert-6600822?utm_source=webapp" opinion_id="6600822">29 Wis. 194. Since Walworth is free from fault in selecting Byrnes as custodian, the fact that the custodian subsequently acted fraudulently in disregarding his obligations can in no way affect the original conditions upon which he received the paper. Rehbein v. Rahr, supra; Beloit & M. R. Co. v. Palmer, 19 Wis. 574" court="Wis." date_filed="1865-06-15" href="https://app.midpage.ai/document/beloit--madison-railroad-v-palmer-6599404?utm_source=webapp" opinion_id="6599404">19 Wis. 574. From the foregoing it results that the release obtained no legal existence, and the recording of it is no more a legal protection to subsequent innocent purchasers for value than the recording of any paper that has never come into legal existence.

By the Gouri. — The judgment is reversed on the appeal of 'Henry J. Killilea, as administrator of the estate of Margaret Hanlin, deceased, as to that part which awards judgment for -the recovery of the sum of $1,580.16 against him as such administrator, and affirmed on the appeal of Albert Gibbs in all 'other respects, and the cause is remanded for further proceedings according to law.