78 Wis. 367 | Wis. | 1890
The facts necessary to present the only question on this appeal are substantially as follows:
The appellants, Field, Leiter dc Go., obtained a judgment for $300.27 in 1878, in the county court of Milwaukee county, against John J. Liginger and one George J. Phillips. John B. Liginger died intestate in the county of Milwaukee, May 14, 1886, seised in fee of lot 10, block 97, in the said city of Milwaukee, as also of other lands, leaving the respondent as his widow, and several children as his heirs, of whom the said John J. Liginger was one. On the 20th day of July, 1887, an alias execution on said judgment was levied on the interest of the said John J. Liginger in said lot, and it has been advertised to be sold on said execution. The deposition of the said John J. Liginger was read in evidence on the trial, in which he testified that his father advanced to him $8,000 or $10,000, and that he gave his father a receipt in full for what was coming to him of his share of the estate, and that it was a full advancement of
At a general term of the county court of Milwaukee county in probate, on the 3d- day of May, 1887, sitting on the 14th day of May, 1887, Hon. JohN E. MaNN, Judge, presiding, the final order or judgment of settlement and distribution of the estate of John B. Liginger, deceased, was made and entered, in which it -was recited or found that due notice of the time and place of hearing had been given as required by law and the former order of the court, “that the said deceased, in his life-time, gave to John J. Liginger, as advancements, to wit, in the year 1874, the sum of seven thousand dollars, and in the year 1883, one thousand dollars, in cash, which amount exceeds the share to which the said John J. Liginger would be entitled in the estate of said intestate, both real and personal, and which are further expressed in an instrument in writing dated December 3, 1883, and acknowledged by the said John J. Liginger as such; and, among other things, that he acknowledges payment in full up to date for all services rendered, and all claims, now and in the future, against the said John B. Lig-inger and his estate, living or dead, and that he has no further claim, in any shape, manner, or form, against the said John B. Liginger, his father, or heirs, or any one else bearing the name of Liginger.” It was further recited or found therein that all the heirs of said estate, on the 25th day of May, 1886, gave to the respondent, the widow of said deceased, a quitclaim deed of all their estate, right, title, interest, and claim to certain real estate belonging to said John B. Liginger at the time of his decease, of which the lot in question was a part. It was therein adjudged
This action is brought to restrain the sale of said lot on said execution, and to bar any supposed interest or title of the defendants therein. The defendants in their answer denied that they had threatened to levy said execution upon the personal property so assigned to the respondent, so that said lot is the only property in question.
The claim of the appellants is obvious, that at the decease of the said John B. Liginger their said judgment became a lien on said property to the extent of the interest of the said John J. Liginger, which has never been divested, canceled, or removed by any judicial proceeding of which they have had any notice. I do not understand that the proceedings of the county court above stated are questioned, except that they are void and of no effect as to the appellants, the plaintiffs in said judgment, for want of notice to them. I ought to say, however, that the learned counsel of ■ the appellants contend that the use of the words “ claims ” and “ claim ” in the written instrument acknowledging the advancements to the said John J. Liginger is insufficient to release his interest in the real estate of the intestate, and must mean some other claim due him from his father. The
The learned counsel contends, with some plausibility, that the statutory notice in such a case is only to those who have an immediate interest in the estate, and not to those who have a collateral interest in the estate of the heir, as in this case.
1. Erom the nature and effect of such an order or judgment as to advancements made by the deceased to any heir, it is binding on everybody who is interested in that question. The statute
It is quite clear that the county court had jurisdiction to make such order or judgment final to all the world. Must the administrator search the records of all the courts to find judgments against any of the heirs, and give a special notice to each judgment creditor before the final settlement and distribution of the estate can be made? It is singular that there should be such an important omission in the statute.
2. The appellants had no interest in the estate of the said John J. They held no lien by their judgment on his share of the estate, for the reason that he had no share in the estate. His interest became vested at the death of his father, if he had any. The adjudication of the question of advancements to him dates back, by relation, to that time. He had received his share of the estate long before his father’s death. The advancement was a part of the estate (sec. 3956, E. S.), and he had received it as his part of the
Tbe order or judgment of tbe county court was competent evidence to prove tbe advancement and that it was
By the Court.— The judgment of the circuit court is affirmed.