15 Wis. 522 | Wis. | 1862
Lead Opinion
By the Court,
It is not pretended the defendant was surprised by the amendment. It is very obvious'he could not have been. Fisk vs. Tank, 12 Wis., 277; Gillett vs. Robbins, id., 319; Bonner vs. Insurance Co. 13 Wis., 677.
It seems clear to us that the plaintiff showed a good title to the bond and mortgage, as against the defendant. The provision of the New York statute is intended for the benefit of the creditors merely, and no other can take advantage of it. Executors have an absolute power of disposal of the personal effects of their testator. They may even dispose of a chattel specifically bequeathed, and the title of the alienee cannot be disputed, Williams on Exr’s, 796; Williams vs. Ely, 14 Wis., 236. It is probable that the creditors may, under the
The clerk clearly exceeded his powers in taxing $14.30 as fees for himself and his predecessor in office. The statute expressly limits the fees of the clerk, in cases like this, to $10. R. S., chap. 133, sec. 17. There was no authority for taxing more. The item of $3.50 paid to the former clerk for a commission to take the testimony of non-resident witnesses was likewise improper. No such fee is allowed by law. It is the business of the attorneys and clerk to prepare such papers without compensation in addition to what is specifically given them for such services. The defendant took the proper steps to rid himself of those illegal items. He moved the court for a re-taxation, and the taxation of the cffirk being affirmed, he excepted. Cord vs. Southwell, ante, p. 211. The court should have stricken out the item of $3.50, and reduced the clerk’s fees to $10.
It is competent for the parties to stipulate for a reasonable attorney’s fee in case of foreclosure. Tallman vs. Truesdell, 3 Wis., 454; Boyd vs. Sumner, 10 Wis., 41; Rice vs. Cribbs, 12 Wis., 179. It must be presumed that such stipulations are made in reference to the costs given by law, and as an additional allowance. The fee in this case is not excessive.
The cause must be remanded with directions that the judg ment be modified in accordance with this opinion. Judgment in this court for costs in favor of the appellant.
Rehearing
On a motion for a rehearing, which was denied, the following opinion was filed:
The defendant’s conn-sel moves for a rebearing. He thinks we must overlooked the fourth point in his brief, that the assignment of the bond and mortgage to the plaintiff was void for the reason that one executor cannot transfer his interest in the estate to another. W e admit the correctness of the general doctrine that several executors are esteemed in law but as one person, representing the testator; that the acts done by one of them relating to the delivery, sale, payment, possession or release of the testator’s goods, are deemed the acts of all; and that if one grants or releases his interest in the estate to the other, nothing passes, because each was possessed before of the whole. 9 Conn., 84; 3 Bac. Abr. Title “Executors and Administrators” (D). But we think the doctrine inapplicable here, or that cases like this should constitute an exception. The plaintiff stood in the double relation of co-executor and residuary legatee. As executor, he held the estate in trust for the purposes of the will. As legatee, he had a vested interest in his own right, under the will, in the whole estate, subject to the payment of debts and other legacies. With the assent of his co-executors, we think it was competent for him to take title in his own right to a part or the whole of the residuum within the year and before final settlement of the estate. It is a well established rule that executors are not obliged to wait, but when the circumstances of the estate will permit, they may discharge legacies at once. 2 Williams on Executors, 1190. “I know of no case,” says Lord EldoN in Augustin vs. Martin, 1 Turner & Russell, 232, “ which prevents executors, if they choose, from paying legacies or handing over the residue within the year, and if it is clear, cúrrente anno, that the fund for the payment of debts and legacies is sufficient, there can be no inconvenience in so doing.” As an independent transfer from his co-executors, no title would have passed; but connected with the will and by virtue thereof, the plaintiff took the property in the capacity of residuary legatee. Otherwise he could never acquire title in his own right, for the principle contended for, if carried to its strict logical results, would prevent an assignment as well after as before a settle-
Motion denied.