Lyle v. Williams

65 Wis. 231 | Wis. | 1886

Cole, C. J.

The learned counsel for the appellant rests his case mainly on the final order for the distribution of the estate of Stephen Williams, made by the .county court May 2, 1818. He says by that order the respondent Williams, as administrator of the estate of Stephen Williams, was directed to pay over to the administrator or executor of Roxy Lyle the sum of $419.4:3, being her share of that estate. The integrity of that order, or its absolute correctness as to the amount then found due the estate of Roxy Lyle by the county court, it is said cannot be impeached or questioned. But we do not understand that the respondents seek to impeach the conclusive character of this order in respect to matters considered by the county court. It is conceded that the order shows the distributive share of Roxy Lyle in the estate of Stephen Williams as found by the county court on the final settlement of that estate. But the defense set up in the answer, and which was fully sustained by the proof, is thajt on or before February 10, 1872, Roxy Lyle, then being in need, applied to the respondent Williams, as administrator of the estate of Stephen Williams, to make advances on her share of that estate to be distributed, and that she agreed to allow and deduct from her share any advances so made to her, with interest on the same at the rate of ten per cent. The evidence conclusively shows, and the court finds, that, pursuant to this agreement, and at the request of Roxy Lyle, the respondent Williamst as administrator, paid and advanced to her from time to time cash and merchandise amounting to $274.14, which, with interest, should be deducted from the amount assigned her in the order of distribution. Notwithstanding the argument of ingenious counsel against the proposition, we are unable to perceive any valid objection to allowing these advances to be applied as legal payments on her distributive share. It is a fact, decisively established by the. proof, that the parties intended and agreed that these advances should be so applied. What principle of law or equity will be violated by giving effect to that agreement?

It is said we must presume, as a matter of law, that the respondent in his final account had credit for all advances or payments which he had made to Roxy Lyle. But this presumption would be disproved by the order of the county court itself, as well as by every other ■ particle of evidence in the case. The order shows the amount of money and assets received by the administrator of the Stephen Williams estate and the credits which were allowed such administrator. There is no ground for saying or presuming that any payments or advances made to Roxy Lyle by the administrator were included in Ms account, or came before the county court on final settlement. Nothing of the Mnd was adjudicated or passed upon by that court; and, unless there is some inflexible rule of law which forbids it,— and we confess we know of none, — • the sums advanced to Eoxy Lyle should be treated in the nature of payments on her distributive share, as the court below decided.

It is further said if these advances are to be treated as payments no interest should be allowed on them. But it appears the administrator charged himself with the interest, and accounted for it on settlement, so no harm was done.

January 2, 1873, Eoxy Lyle gave her promissory note to H. G. Williams for $125, with interest at +en per cent, until paid; also, March 24, 1873, she gave a receipt to him for $68.70, to apply on her distributive share. There can be no doubt that these sums were for cash advances or payments made to her. But it is said that these claims, as well as the account for merchandise, should have been presented to the county court as claims against the estate of Eoxy Lyle, and, not having been presented, they are barred. But we cannot concur in that view, because, as we have said, these advances must be treated as payments, according to the intention and agreement of .the parties.

It follows from these views that the judgment of the circuit court was correct, and must be aflirmed.

By the Oourt.— Judgment affirmed.