102 Wis. 56 | Wis. | 1899
We have been unable to find any evidence in the record to support the finding of the court to the effect that the defendant, Hcmhins, knew that Rambusch borrowed the |2,500 for his own personal use and not for the purposes of the estate. On the contrary, it appears very clearly that Rambusch represented to Nmokins, in effect, that the money was borrowed for the purposes of the estate, and also that Rambusch was a man respected and trusted in the community, and that there were no facts appearing which would have put a reasonable man upon inquiry, or raise a suspicion that Rambusch expected to make any improper use of the money borrowed. Under these circumstances, the law is quite well settled to the effect that the pledge was valid. The principle is well expressed in the case of Smith v. Ayer, 101 U. S. 320-326, thus: “There is no doubt that, unless restricted by statute, an executor can dispose of the personal assets of his testator by sale or pledge for all purposes connected with the discharge of his duties under the will; and even where the sale or pledge is made for other purposes of which the purchaser or pledgee has no knowledge or notice, but takes the property in good faith, the transaction will be sustained, for the purchaser or pledgee is not bound to see to the disposition of the proceeds received. Rut the case is otherwise where the purchaser or pledgee has knowledge of the perversion of the property to other purposes than those of the estate, or the intended perversion of the proceeds.” See, also, Schouler, Ex’rs, §§ 349, 350; Gottberg v. U. S. Nat. Bank, 131 N. Y. 595. The powers of an executor with regard to the sale or pledge of assets are much broader than those of a trustee, because the executor takes title to the personal property and is presumed to have the
It is claimed that $412.50 of the $2,500 debt from Eam-busch to Hawkms was not advanced by Eawkms, but consisted of a past-due debt owing by Eambusch to Ea/wkms, for interest money collected, and hence that, so far as this sum is concerned, Eambusch pledged the assets of the estate to pay his own debt, which he could not legally do. Weir v. Mosher, 19 Wis. 311. There is, however, no evidence showing affirmatively that this $412.50 was in Eambusch’s hands when he negotiated the loan of Ecmlcms; but the evidence rather tends to show that the interest moneys were collected after the loan was negotiated, and when- Hawkins really owed Eambusch $500 upon the loan, and that the interest moneys were simply set off against the money which Hawk-ms would otherwise have forwarded to Eambusch to complete the loan.
By the Oourt.— Judgment reversed, and action remanded ■ with directions to render judgment dismissing the complaint.
