14 Wis. 210 | Wis. | 1861
By the Court,
Under tbe stipulation of parties, tbe only question we have to consider on the demurrer to tbe answer is, whether tbe sale of tbe note and mortgage mentioned in tbe complaint, to tbe appellant, passed tbe title, it having been made by Bode, tbe administrator of tbe estate of Damrt deceased. It is contended that no valid sale could be made by tbe administrator, under our statute, without a previous order of tbe probate court. Tbe same question in substance was presented in tbe case of Ely vs. Williams, 13 Wis., 1, and our decision was adverse to this position. We then held that an administrator could dispose of tbe personal effects of his intestate, and give a good title, without any order of tbe probate court authorizing bim so to do, because tbe title in law vested in bim. Tbe only object there could be for bis obtaining an order of sale from tbe probate court, would be for bis protection in case tbe personal property did not sell for its appraised value. If be should sell without such an order, be would be held liable to account for what tbe personal property was appraised at, whether it should sell for that amount or not. Hence tbe reason for obtaining such an order, and not because it was necessary to enable bim to give a good title to tbe property.
The order of the circuit court, overruling the demurrer to the answer, is therefore reversed, and the cause remanded for further proceedings.