Lynch v. Divan

66 Wis. 490 | Wis. | 1886

Lyon, J.

The order of the county court requiring the executor to pay the claim of Lynch was not authorize!! by law. The note, and the claim of the estate against the executor for rent received by him, were merely ehoses in action, or property of the estate, upon which the executor might or might not be indebted; and it was the clear duty of the executor to include them in his inventory, whether he recognized them as valid claims against him or not. By so doing he admitted the existence of the note, and the receipt of the rent as therein stated; but he did not thereby admit that he owed the estate anything on account of either, or estop himself to deny his present indebtedness thereon. A defense to these claims has no proper place in the inventory. Whether he was the debtor of the estate on either1 account could only be determined in some legal proceeding appropriate to that end. Unless the county court was satisfied that the claims of the estate against the executor could not be enforced, it should have removed him and appointed a competent administrator, who should have been required to bring suit against the late executor on the note and for the rent. Such is-still the proper practice if the county court thinks the claims are valid and collectible; but before such suit is brought, the county court may and probably should require the appellant, Lynch, to indemnify the administrator against the costs and expenses of the litigation.

Whatever effect may be given to the inventory and verification thereof as admissions of the executor, in no view oU the case can the demands of the estate against the executor properly be regarded as moneys in his hands as executor, which the court may, by summary order, require him to pay over. Thej' accrued in the life-time of the testatrix, and at most are debts against him which must be collected in the same manner as a debt owing by any other person to the estate. Should the order of the county court be upheld, the executor would be liable to be attached and imprisoned for non-compliance therewith. This would be imprisonment for debts arising ex contractu, which our constitution forbids. Art. I, sec. 16.

The order or judgment of the circuit court was criticised in the argument of counsel, because it merely remands the record, to the county court “for further proceedings according to law,” and fails to direct what such proceedings shall be. JSTo further proceedings in the matter of the reversed order of the county court could be taken. It was unauthorized, and all the circuit court could do with it was to reverse it, and thus eliminate it from the proceedings. The formula above quoted is a mere direction to the county court to proceed in the administration and settlement of the estate as the law requires. The form of the judgment is sufficient.

By the Court — The judgment of the circuit court is affirmed.