Hooe v. Lockwood

| Wis. | Dec 15, 1850

Whitoít, J.

This case comes here from the late district court for Crawford county.

It appears by the record, that Emilie Hooe and her sureties were sued in that court,on a bond entered into by them, conditioned as follows: “ That, whereas, the said Emilie Hooe had taken out letters testamentary on the estate of Joseph Rolette, of the county aforesaid, deceased; then, therefore, if the above bounden Emilie Hooe would make, or cause to be made, a true and perfect inventory of all and singular, the goods, chattels, rights and credits of the said deceased, which had, or should come to her hands, knowledge or possession, or into the hands or possession of any other person or persons, for her, and the same so made, should exhibit, or cause to be exhibited in the office of the judge of probate for said county of Crawford, at or before three calendar months from the date thereof, and the same goods and chattels, rights and credits of the said deceased, at the time of his death, which shall at any time after come to the hands or possession of the executrix, or into the hands or possession of any other person or persons, for her, would well and truly administer, according to law, and would further make or cause to be made, a just and true account of her administration, upon oath, at or before the fifteenth day of May, which would be in the year of our Lord, one thousand eight hundred and fortyffour; and the rest and residue of said goods and chattels, rights and credits, which should be found remaining upon account of the said executrix, the same being first examined and allowed by the judge or judges, for the time being, of probate of wills, and granting administration within the county of Crawford, aforesaid, and should deliver and pay to each person or persons, respectively, as the judge or judges, by his or their decree or sentence, pursuant to law, should appoint and limit, that then the said above written obligation was to be void and of no effect, or else to abide and remain in full force and virtue.”

The declaration then sets out that at a court of probate, held before the said James H. Lockwood, then being the judge of probate for Crawford county, in a certain matter pending in said court, upon and concerning the administration of the said estate of the said Joseph Rolette, deceased, it was sentenced and decreed, that the said Emilie Hooe, executrix as aforesaid, should pay to the said American Eur Company, the sum of two hundred and seventy-nine dollars and fifty-five cents, which was then and there adjudged by said court, to the said American Eur Company, as their pro rata dividend of certain moneys received by the said Emilie Hooe, executrix, of and from the estate of the said Joseph Rolette, deceased, and avers a refusal to pay money upon request.

To this declaration the defendant pleaded nil debit, which was held bad on demurrer; they then pleaded non est factum and plene administravit. The plea of plene administravit was held insufficient on demurrer, and the defendants having withdrawn their plea of non est factum, the penalty of the bond was adjudged to be forfeited.

The court then assessed the sum equitably due the plaintiffs at two hundred and seventy-nine dollars and fifty-five cents, and rendered judgment against the defendants for the amount.

The defendants moved for a new trial, founded on the affidavits of Emilie Hooe and Edward W. Pelton, setting forth the absence of the counsel of the defendants from the court at the time when the case was disposed of. This motion was overruled by the court.

Erom the above statement it is apparent that this cause must be determined upon the declaration alone.

The motion for a new trial was addressed to the discretion of the judge, and unless there was a gross abuse of that discretion, this court will not reverse the judgment for a supposed error in its exercise; and we see no such abuse as would warrant us in reversing it. Was then the declaration sufficient to justify the court in rendering the judgment? We have arrived at the conclusion that it was not.'

It sets out the bond which the defendants entered into, with the condition, and the decree or order made by the judge of probate of Crawford county, by which he directed the payment of the sum demanded in this suit, to be paid to the American Eur Company.

This decree the judge of probate had no authority to make ; he had no right to decide that the estate of Rolette owed the money to the American Eur Company, if that fact was disputed, but could only direct the payment to them of their pro raía share of the assets belonging to the estate, in the hands of the administrator, upon a claim against the estate, which had been previously ascertained to be legal and valid, or which the administrator was, by law, obliged to pay. 1 Munford, 1.

The declaration is fatally deficient in not averring that the American Eur Company was. the creditor of the estate, or that such proceedings had been had as fixed the liability of the administrator and established the right of the company to this amount out of the estate.

The other points relied upon by the plaintiffs in error, it is unnecessary to notice.

Judgment reversed.