Mackin v. Hobbs

116 Wis. 528 | Wis. | 1903

Donan, J.

The questions of law discussed by the circuit court were numerous, and some of them quite immaterial to the final conclusion which we have reached upon the questions presented upon this appeal, which seems to ns to dispose of those questions in the most direct and final manner; hence but few subjects discussed by counsel will need review in this opinion.

We deem it entirely plain that the county court was right in holding that the date of the license to sell real estate was January 16, 1900, and not May 23, 1898. This court, upon the former appeal, decided that the attempted order of May 23, 1898, was not that which it was the duty of the county court, under the law, to enter in response to the petition presented by the administrator, and never until the return of the remittitur from the circuit court directing modification in accordance with the decision of this court, nor until the order of the county court carrying such directions into effect, was there made the order and license to sell real estate warranted by such petition and the law. lienee, under that license, assuming, but not deciding, jurisdiction to have existed to enter it, appellant was authorized to sell the real-estate interest of Mary Ann Drown in the manner prescribed by statute within one year from January 16, 1900, and up to such later date as might be fixed by extension by the county court in its discretion, not exceeding two years from January 16, 1900. Sec. 3889, Stats. 1898. We, however, disagree with the county court in its next conclusion, — tbat in May, 1901, wben tbe administrator applied for such extension, its power to consider and exercise its discretion over the propriety of granting it no longer existed, merely because the first year had expired. We find nothing in the statute which required that such extension be granted during the one year allowed for the sale in the first instance, and there is no good reason why, within the two-year limit, the discretion broadly vested in the county court by sec. 3889, Stats. 1898, to permit sale under the original license may not be exercised. The county court should, therefore, upon the administrator’s application in May, 1901, have considered the propriety of granting the extension requested in the light of the facts then existing. This it did not do, nor has the circuit court attempted at any time to exercise discretion over that question. Had either court done so, we should probably have felt constrained to adhere to the conclusion it reached, unless we deemed such discretion to have been abused. In the absence of such guide, but having the facts all before us, we have decided to examine those facts, and decide thereon as to whether appellant’s application ought to have been granted.

The situation then presented may be summarized as follows : All debts and legacies having been paid, the administrator was the only person to be convenienced or benefited by a sale under authority of the county court. The protracted delay in taking this step from July, 1893, to May, 1901, was all chargeable to the administrator, except that beween his application for licensej March 2, 1898, and dismissal of the injunction against him, November 21, 1900. From the last-named date ,to May 13, 1901, — a period of nearly six months, — the administrator, with nothing to prevent, had neglected to take any steps to make the sale, which might have been made within a month from such dismissal of injunction. At the time, he applied to the court to intervene in his behalf he was, therefore, involved in such serious laches as to have no strong equity. At that time, too, the six-year limit had been passed, beyond which the county court is, by sec. 3850, Stats. 1898, prohibited from granting further express extensions of time for settlement. Whether that statute is so drastic and self-executing as to wholly terminate the administration, as intimated in In re Pierce, 56 Wis. 560, 14 N. W. 588, or whether power is still left in the county court to complete the settlement of the estate, so that the will and the law of descent and distribution may have effect, as seems to be indicated in Scott v. West, 63 Wis. 529, 555, 24 N. W. 161, 25 N. W. 18, and Ford v. Ford, 88 Wis. 122, 134, 59 N. W. 464, still there can be no doubt that it declares a legislative policy in favor of closing estates within the six years, upon which county courts should permit no infringement not strictly necessary to accomplish the assignment and distribution of the property to those entitled. Beyond that period estates should not be kept open to enable county courts to take steps which can well be taken elsewhere after the final order has been made. At the time under discussion there remained but two steps essential to the complete settlement of the estate which could only be performed by the county court. Those were the settlement of the accounts of its officer, the administrator, and the assignment of the real estate to those entitled under the will. The only remaining charge upon that real estate was for expenses of administration, made in the will by necessary implication from the charge to pay debts. In re Maddens Will, 104 Wis. 61, 80 N. W. 100. This burden might be discharged in several ways. The expenses might be paid by the devisee. The property might be sold under •order of the county court as a step in the settlement of the estate, and the expenses paid from the proceeds; or that charge, like any other upon real estate, can be enforced by a court of general equity jurisdiction. Doubtless it is better generally that the whole matter should be'disposed of in -county court, but that is not absolutely necessary, and its advisability should yield to so strong á countervailing consideration as the definite statutory policy declared in sec. 3850, State. 1898. We are convinced that the county court, instead of breaching that policy by granting extension, as asked, for another eight months, ought to have compelled the administrator to immediate final accounting, and entered its final order thereon, assigning the real estate to the devisees or their assigns, subject to a charge upon the interest given to Mary Ann Brown for the amount of the expenses of administration, as ascertained, in deference to the decision of this court upon the former appeal, ubi supraj which, whether binding the purchasers pendente lite as res adjudícala, would, of course, guide the county court as a rule of law supported by stare decisis. Hence, albeit upon entirely different grounds, and without adopting or affirming the various legal conclusions of the courts below further than as expressly stated, we reach the conclusion that the administrator’s application for further extension of time ought to have been denied, and that the order to that effect should stand.

By the Court. — Judgment affirmed.