73 Wis. 533 | Wis. | 1889
Upon this appeal it is contended by the learned counsel for the appellants (1) that the claim of the surviving partners, if they have any, against the estate of the deceased partner, was a proper one to be presented to the county court for allowance in the settlement of the estate of the said H. S. Dixon, deceased, and, not having been presented to said court within the time limited by law, their right of action is barred; (2) that the circuit court has no jurisdiction of this action; (3) that the findings should have stated an account between each member of the firm, before it can be ascertained or adjudged how much the defendants ought to pay.
The learned circuit judge held that the first objection of the appellants w&s not well taken, because the county court bad not made the proper order or given the proper notice to the creditors of II. S. Dixon, deceased, to present their claims for allowance, and so the statute relied upon was no bar to the plaintiff’s action. Whether the learned circuit judge decided this question rightly, or not, we do not deem it necessary to determine on this appeal, as we are of the opinion that the plaintiffs could maintain their action if the county court had made the proper order and given the proper notices for limiting the time within which claims phould be presented to said court against the estate.
It is very clear to our minds that the claim of the plaintiffs against the estate of II. S. Dixon, for contribution for the payment of the debts of said partnership, was a contingent claim of the surviving partners against said estate, and
Having satisfactorily shown that the claim of the plaintiffs was a contingent claim against the estate of the deceased partner, the plaintiffs had an option either to present the claim against the estate as a contingent claim, under secs. 3858, 3859, R. S., or to delay until the claim became absolute by the settlement of the affairs of the firm, and then
The allegations in the complaint in this case show that the administrator of the estate of EL S. Dixon, under an order and decree of said county court of Waupaca county, duly settled his accounts as such administrator on the 22d day of May, 1882, and distributed to the widow and heirs at law of deceased all of said estate, and that the amount of the estate so distributed by order of said court was over $12,000, and that on the same day said administrator was discharged; and it is further alleged that said administrator has not now, and has not had since the date of said decree distributing said estate, any assets, estate, money, or property belonging to the said estate of said EL S. Dixon. These allegations are not denied in the answer. The complaint also alleges that the plaintiffs, as surviving partners of the said firm, fully completed the settlement of the affairs of the said copartnership on or about the loth day of May, 1885, and that the claim of the plaintiffs against said EL S. Dixon, deceased, became absolute on that day. These allegations of the complaint are not denied by the answer, al
Plolding, as we do, that the claim of the plaintiffs against the estate of IT. S. Dixon was a contingent claim which could not have been adjusted or allowed by the county court until the surviving partners had settled and wound up the business of the firm, and which did not become absolute before the estate of Dixon had been settled and the assets distributed to the heirs and widow, it was not barred by sec. 3844, R. S., and the plaintiffs could properly pursue their remedy against the heirs and distributees of said deceased, under the provisions of oh. 141, R. S. This question was fully considered by this court in Mann v. Everts, 64 Wis. 372. In that case the chief justice says: “According to our view, the statute refers to a contingent claim or liability which can be established by proof, and tho amount ascertained. Where a contingent liability exists, and the contingency happens so that the contingent liability becomes an absolute debt which may be proven by the creditor before the settlement of the estate has been closed and the property distributed, there the statute bars the claim if not presented to the commissioners or the county court within the time allowed.” See, also, Webster v. Estate of Lawson, post, p. 561, in which an opinion is now filed; McKeen v. Waldron, 25 Minn. 466.
No argument has been made on the part of the appellants that the evidence does not support the findings of fact so far as such findings relate to the amount of losses Avhich were sustained by the said New London Stave Company in carrying on and closing up said business. We must therefore consider that such- findings are supported by the
By the Court.— The judgment of the circuit court is affirmed.