151 Wis. 625 | Wis. | 1913
It is urged that this action cannot be maintained because Rink was appointed administrator on the 22d day of February, 1910, which was a legal holiday. Assuming that the court had no authority to appoint Rink as administrator on said date, such want of authority affected his legal capacity to cause the action to be instituted. The complaint alleged that the appointment of Rink as administrator was made on the 22d day of February, 1910. Sec. 2649, Stats. (1898), provides that one ground of demurrer is that plaint
A demurrer ore tenus was interposed in this case, but such a demurrer goes to the cause of action and does not reach plaintiff’s want of legal capacity to sue. Murray v. McGarigle, 69 Wis. 483, 34 N. W. 522. The objection that plaintiff has not legal capacity to sue cannot be taken by general demurrer. State ex rel. Cornish v. Tuttle, 53 Wis. 45, 9 N. W. 791. It can be taken only by special demurrer or answer. Manseau v. Mueller, 45 Wis. 430; Vincent v. Starks, 45 Wis. 458.
Defendants allege in their answer that plaintiff has not the legal capacity to sue because the appointment of Rink as administrator is wholly void, on the ground that the county court of Iowa county had no jurisdiction to make such appointment at the time it attempted t'o appoint him. This may be said to be a demurrer by way of answer, but such a pleading is not recognized in this state. Jones v. Foster, 67 Wis. 296, 30 N. W. 697; Smith v. Kibling, 97 Wis. 205, 72 N. W. 869.
Sec. 1120 of the Revised Gode of Mississippi of 1811 provides :
“If any executor or administrator shall die, resign or be removed, or become incompetent, before a final settlement of the estate, letters of administration de bonis non shall be granted to the person entitled, under the rules heretofore laid down, and he shall proceed in the administration of the estate to final settlement.”
In Sivley v. Summers, 57 Miss. 712, it was held that', upon the removal of an executor or upon his resignation, an administrator de bonis non could be appointed under the section of the statute quoted without notice to the legatees. And so in Massachusetts it has been held that upon the death of a sole executor or administrator neither the widow nor next of kin have a right to the administration de bonis non, but the judge of probate appoints in his discretion. Russell v. Hoar, 44 Mass. 187.
It appears that in Hubbard v. C. & N. W. R. Co. 104 Wis. 160, 80 N. W. 454, sec. 3808, Stats. (1898), was held applicable to the appointment of an administrator de bonis non. Whether or not that case is distinguishable from this by the fact that the first administrator had completed his administration, settled his accounts and been discharged, and the administrator de bonis non was the plaintiff of record instead of the county judge, need not be determined. True it is, the
The defendants are in no position to object on the ground that no guardian ad litem for the minors was appointed when letters testamentary were issued to Phil Allen, Jr. Through their principal they became parties to that proceeding, and, by participating therein, they waived the necessity for the appointment of such guardian, and the proceeding is binding upon them, though it may be disaffirmed by the minors.
It may be a question whether the defendants are in a position to object to the validity of the appointment of Rink in an action against them as sureties on the bond of the removed executor brought in the name of the county judge for the benefit of the estate pursuant to sec. 4015, Stats. Smith v. Peckham, 39 Wis. 414; Johannes v. Youngs, 45 Wis. 445; Barney v. Babcock's Estate, 115 Wis. 409, 91 N. W. 982. To the end, however, that this whole litigation may be speedily and finally closed up as to all parties interested in the estate, the defendants, if they so elect, may have the minors made parties to the suit and the final account of Phil Allen, Jr., restated. By so doing an adjudication can be made that will be conclusive on all parties interested.
It is claimed costs were not taxed within the sixty days required hy sec. 2894a, Stats., which provides that “whenever a finding shall be filed or a verdict rendered the successful party shall perfect the judgment and cause it to be entered thereon within sixty days,” and if he fails to do so no costs shall be taxed. It appears that on the 2d of October, 1911, the court orally ordered the action to be dismissed for lack of authority to sue. The findings, however, were not prepared
By the Court. — Judgment reversed, and the cause remanded for further proceedings according to law.