64 Wis. 372 | Wis. | 1885
In this case the learned circuit court decided that this action against the heirs of Charles P. Everts was not barred by the proceedings in the county court for the settlement and distribution of the estate of said Everts according to law. The correctness of this decision is the main question to be considered on this appeal. In addition to the facts stated when this case was here on a former appeal (see Estate of Fitzgerald, 57 Wis. 508), we may add that Charles P. Everts was one of the sureties on the bond given by Maurice Fitzgerald on obtaining a license to. sell the real estate of his intestate. The bond was conditioned that the administrator would justly and truly account for all the proceeds of the sale of such real estate, and dispose of the same according to law, and perforin all orders and decrees of the county court by him to be performed in the premises. In November, 1879, Maurice Fitzgerald was cited to render his account as administrator, and the items of that account was the matter considered on the other appeal. This court decided that there remained in the hands of the administrator, unaccounted for, a larger sum than was found by the circuit court. It therefore reversed the judgment of that court, and remitted the cause for the entry of a judgment for the proper amount. In conformity to this direction the county court in probate, to which the cause had been remitted by the circuit court, in Sejatem-ber, 1883, rendered judgment against the administrator for $1,363.18, the amount of the proceeds of the sale still in his hands, with interest thereon from September 15,1883. The administrator was ordered to pay this amount over to the heirs of John Fitzgerald, or to the persons named, which he neglected to do. This action was then brought under the statute against the heirs of Everts to enforce the liability arising on this bond above named. It appears that Everts died in 1871, while an inhabitant of Milwaukee county. An administrator was appointed to settle his estate. The
These are all the facts necessary to be stated in order to understand the position of counsel in the case. On the part of the heirs of the Everts estate it is insisted that all claim or liability against that estate arising upon this bond is barred, because no attempt was ever made to present or to prove it against the estate within the time limited for the presentation of claims, nor within one year after the claim accrued or became absolute. The provisions of ch. 101, 2 Tay. Stats., as amended by ch. 73, Laws of 1873, it is insisted, sustain this position. The sections more especially relied upon are 14, 47, 48, 49, 51, 52, and 55. From these and other provisions of the statutes the learned counsel contends that the county courts are the sole tribunals for the adjustment of all claims against the estates of deceased persons, whether such claims are absolute or contingent; and that where administration has been had upon an estate, and notice and opportunity given for creditors to present their claims for allowance, they must do so within the time limited, or their claims will be barred. This is undoubtedly correct as to all claims proper to be allowed by the commissioners. Sec. 14 expressly declares that unless the creditor shall exhibit his claim within the time limited for that purpose, it shall be forever barred. Sec. 3844, E. S. 1878. The other sections referred to by counsel relate to the allowance of a certain class of contingent claims. Where a person is liable as security for the deceased, or has any other contingent claim against his estate which cannot be proven as a
It is true, these cases arose under the bankrupt law, but they illustrate the principle as to what is deemed a contingent claim or liability provable against the bankrupt. In this case the actual breach of the condition of the bond did not occur until nearly ten years after the settlement of the Everts estate, and long after the jurisdiction of the county court over that estate had been exhausted. The statute provides no way for the county court reinvesting itself with that jurisdiction for the purpose of adjusting the claim against it. So, under the circumstances, there was no remedy in that court. The creditor was put to his action under ch. 141, R. S. 1878, which substantially includes secs. 55, 58, 60, ch. 101, Tay. Stats. See Reviser’s Notes, p. 236. The statutes of Minnesota in regard to the settlement of estates, and allowance of contingent claims against them, are essentially the same as our own. In McKeen v. Waldron, 25 Minn. 466, is a well-considered opinion delivered by GilvillaN, C. J., in which it is in effect held that “ a contingent claim against the estate of a deceased person, which does not become absolute within the time limited for creditors to prove their claims before com
It is. unnecessary to say that the case of Ernst v. Nau, 63 Wis. 134, is not in conflict with these views. There the condition of the bond was broken, and the amount of the liability ascertained, before the surety, Nau, died. The liability was a fixed and absolute one, and the claim against his estate for contribution might have been presented and proven within the time limited for the presentation of claims against it. Not having been presented, it was held that the statute barred it. But the administration upon that estate was not closed and the property distributed before the liability was fixed, as in the case before us.
It follows from these views that the plaintiff’s right of recovery is not barred by the proceedings taken in the Everts estate.
The next question is as to the extent of this liability. Of course the plaintiff is entitled to recover the amount of the proceeds of the sale, viz., $1,363.18, unaccounted for by the administrator, with interest from September 15, 1883. ¥e think he is entitled to recover the costs awarded in this court and in the circuit court, necessarily resulting from the action to enforce the claim of the heirs against the administrator. These costs are fairly chargeable to the surety upon his undertaking by reason of the default of the principal in the bond. Beyond this, the estate of the surety or the defendants are not liable. The circuit court held that the plaintiff was entitled to recover the sum of $450 counsel fees, expended by the Fitzgerald heirs in compelling the administrator to account, and in and about the accounting.
By the Court. — The judgment of the circuit court is reversed, and the cause remanded to enter a judgment in accordance with this opinion.