181 Wis. 107 | Wis. | 1923
It is claimed on behalf of the plaintiff that neither of the defendants has any standing in court. Such claim is based upon the fact that previous to the trial the plaintiff sought to examine the defendant McCormick adversely under sec. 4096, Stats. He was" then incarcerated in the state prison at Waupun. Though the proceedings for his examination were lawful and regular he refused to testify, and it appears that his attorney, representing both himself and the surety, approved and assented to' such refusal. Sub. 1 of sec. 4097 provides:
“If any party lawfully required to appear and testify, as provided in this chapter, either within or without the state, shall neglect or refuse so to do, he may be punished as for a contempt and his pleading be stricken out and judgment given against him. as upon default or failure of proof.”
The trial court struck out the answer of the defendant McCormick on the ground that he refused to testify, but permitted the surety to defend the action. Both the defendant and the surety appealed. Plaintiff invokes the doctrine that a surety has no better standing in court than his principal, citing Holden v. Curry, 85 Wis. 504, 55 N. W. 965; Schoenleber v. Burkhardt, 94 Wis. 575, 69 N. W. 343; Meyer v. Barth, 97 Wis. 352, 72 N. W. 748; and Wallber v. Wilmanns, 116 Wis. 246, 93 N. W. 47. The defendants contend that the provision of the statute quoted, authorizing the court to strike out .the answer of the defendant McCormick because he refused "to testify, is unconstitutional on the ground that it unjustly and arbitrarily
The defendants further contend that the liability of the surety attaches from and after the date of the execution of the bond, and does not relate back to the time of the death of the deceased, and in support of such contention they cite the case of Holden v. Curry, 85 Wis. 504, 55 N. W. 965, where it was held that the surety upon a guardian’s bond was liable only for defalcations taking place subsequent to the execution of the bond. They also refer to the bonds of public officials in which sureties are held liable only for defalcations taking place during the term of office, and reliance is also placed upon a statement in 1 Woerner, Am. Law of Adm. § 198, where it is in substance stated that in America the doctrine of an executor or administrator de son tort is not usually applied, because when an executor or administrator is appointed his title attaches by relation from the time of the decedent’s death. This latter statement, we conceive, can logically sustain only a contrary position, because it declares that the executor or administrator takes title from the time of the death of the decedent.whenever he is appointed and does not attach to him only from and after the date of his appointment and the. execution of his •bond, as in the case of a guardian.
The doctrine is well established that, whenever an ad.ministrator or executor is appointed and qualifies, he takes vtitle to all such property as the'law vests, in him from the date of the death of the decedent, and not from the date of his qualification and the execution of his bond. Ellyson v. Lord, 124 Iowa, 125, 99 N. W. 582, and cases cited; Choate v. Arlington, 116 Mass. 552; Scofield v. Churchill, 72 N. Y.
“The general rule is that the sureties are liable for assets of the estate which their principal received before as well as after the execution of the bond, in case of the principal’s conversion or maladministration in respect of such assets or failure to render due account thereof.”
This rule is well sustained by the authorities. Bassett v. Fidelity & D. Co. 184 Mass. 210, 68 N. E. 205; Harmon v. Weston, 215 Mass. 243, 102 N. E. 470.
In the present case the executor failed to file an inventory showing any of the property found in this case to' have been received by him, and the time for filing such inventory and rendering a true account thereof had long since expired by statute. The surety obligates himself by his bond that the principal will render a just and true account and file a just and true inventory of all goods and- chattels belonging to the estate of which he has knowledge. The performance "of this duty as to goods and property obtained prior to the death of the decedent is as much within the obligations of the bond as' of goods received subsequent to the death of the deceased. If the executor had filed a just and true inventory of the go.ods that came into his possession before the death of his wife, and if it should appear that he was finan-
Claim is also made by the defendant that the evidence does not sustain the findings of the referee, which are confirmed by the court, as to the conversion of some of the items and as to their value. We can express no opinion upon that assignment of error because the certificate of the judge to the bill of exceptions does not show that all the evidence has been returned. In such case this court cannot review assignments of error based upon an insufficiency of the evidence to sustain the verdict or the findings. Charles v. Godfrey, 125 Wis. 594, 104 N. W. 814. We have, however, looked into the evidence returned, and, if that be all the evidence there was, we are of the view that the findings cannot be set aside as contrary thereto.
By the Court. — Judgment affirmed.