Gundry v. Estate of Henry

65 Wis. 559 | Wis. | 1886

Cassoday, J.

The only question .presented is whether Parmele was entitled to recover from William T. Henry’s estate the $1,103.83 which he, as administrator de bonis non of Phelan’s estate, was compelled to pay over to the dis-tributees of Phelan’s estate from his own money, and which amount was never received by him from William T. Henry’s estate. William T. Henry was the administrator of Phelan’s estate when he died. At that time there was to the credit of Phelan’s estate, on the books of Henry’s bank, $6,Y56.02. As appears from the record, William T. Henry left a will by which he gave all his property, real and personal, to his widow absolutely. The will was admitted to probate, September 4, 1883. Parmele and Henry, Jr., were named as executors therein, but with directions not to require them to give any bond. They qualified as such, and accepted the trust, and entered upon the duties of their office. It was assumed on the argument that because the widow was the sole devisee and legatee in her husband’s will, therefore his real and personal estate vested in her absolutely and immediately upon her husband’s death. But the will was ineffectual, even as to the real estate, until admitted to probate. Newman v. Waterman, 63 Wis. 616. Whether, upon being admitted to probate, it if so facto vested the title to the real estate immediately in the widow, is immaterial here. This court has held “ that where personal property is disposed of by a residuary legacy, as here, it does not vest at once and directly in the legatee, but in the executors, by operation of law, subject to distribution, as in case of intestacy.” Melms v. Pfister, 59 Wis. 192. "We have no doubt of the correctness of such holding. It follows that upon the probate of the will the legal title to the assets of the bank, and all the other personal property of William T. Henry, at once vested in the executors named; and upon such probate the same, probably by way of relation, took effect as of the death of the testator.

October 2,1883, Parmele was also appointed administrator de bonis non of Phelan’s estate. Prom that time until he resigned as executor of the estate of William T. Henry, May 7, 1884, Parmele occupied the position of double trustee of the personal property left by William T. Henry, — for that property Avas in part for the benefit of Phelan’s estate,— and, in addition to this, was the manager of the bank. He collected $50 for Phelan’s estate, and deposited it in the bank to the credit of that estate. He drew nothing from the bank by reason of Avhat was due from Henry’s estate to Phelan’s estate until in April, 1884, when he drew out for Phelan’s estate, in money, United States bonds, and notes, the amount which stood to the credit of that estate on the books of the bank, and $131.17 in addition. The new administrator contested his right to $1,235 of the notes so draAvn out. It is conceded that he dreAV out $131.17 more than he was entitled to on any theory, and the court in effect so found. It is insisted, however, that he was entitled to the balance so drawn out, of $1,103.83. Some of the notes had been taken after William T. Henry’s death, and apparently upon the assumption that the legal title of all the personal property was in the widow. A suit was commenced in the circuit court and proceedings instituted in the county court to reclaim them. Both the suit and the proceedings were settled by stipulation, under which the notes were all surrendered to the new administrator upon the agreement that such settlement and surrender should not prejudice Parmele’s claim herein against William T. Henry’s estate. The notes being in the bank were presumptively a part of or traceable to William T. Henry’s estate, even though they had been taken in a new form, under a misconception as to who held the legal title to the assets of the bank. Of course, if they were not traceable to William T. Henry’s estate, but were directly traceable to the separate estate of Mrs. Henry, derived entirely from a different source, then they could not have been properly appropriated by William T. Henry’s executors to pay Phelan’s estate. But, assuming that they were traceable to or arose from the personal property belonging to William T. Henry’s estate, tjien Parmele, as one of the executors of that estate, had the right to draw out the funds in payment of Phelan’s estate, and hold the same as administrator de bonis non of that estate. But, assuming that some of the notes so drawn out were the separate property of Mrs. Henry, yet that would not alter the case, for those notes were surrendered to her assignee. The fact would nevertheless remain that William T. Henry’s estate was still indebted to Phelan’s estate in the sum of $1,103.83, with interest, and we perceive no good reason why it should be disallowed. Especially is this so, since the record before us does not warrant the conclusion that William T. Henry’s estate is insolvent.

Under the view we have taken of the case the question of unlawful preference under ch. 349, Laws of 1883, does not arise. It is not Mrs. Henry’s estate, but William T. Henry’s estate, that we have to deal with.

By the Oourt.— The judgment of the circuit court is affirmed.