118 Wis. 662 | Wis. | 1903
At the commencement of the trial the defendant objected to any evidence under the complaint, because it did not appear therefrom that the plaintiff had not a full and complete remedy by proceedings in the county -court, and hence that a court of equity should decline to take jurisdiction. This objection was manifestly based upon the rulings of this court in Meyer v. Garthwaite, 92 Wis. 571, 573, 576, 66 N. W. 704; Burnham v. Norton, 100 Wis. 8, 13, 75 N. W. 304; Hill v. True, 104 Wis. 294, 301, 80 N. W. 462; Ludington v. Patton, 111 Wis. 208, 249, 86 N. W. 571. The complaint alleges, and the proofs show, that the defendant, as executrix and residuary legatee, had given the bond required by sec.'3795, Stats. 1898, conditioned “to pay all the debts and legacies-of the testator.” This being so, the trial court held, in pursuance of a decision of this court, that the effect of giving such bond was to pass to’ the defendant '“the absolute title to the whole estate, and to terminate the administration,” and that “claims against the estate became, by the execution of the bond, claims against such sole legatee, and the remedy of general creditors of the estate was thereafter upon the bond or against the legatee, and not against the estate.” Will of Ebenezer W. Cole, 52 Wis. 591, 592, 9 N. W. 664. And see Meyer v. Garthwaite, 92 Wis. 575, 66 N. W. 704. In the first of these cases it is said that such “is the doctrine of the Massachusetts cases” arising under a statute like ours; citing Thompson v. Brown, 16 Mass. 172; Clarke v. Tufts, 5 Pick. 337. Neither of those cases'goes to
“It is no defense to an action under the” statute “against an administrator de bonis non with the will annexed that the original executor, who was also the residuary legatee, gave a bond to pay debts and legacies.” Collins v. Collins, 140 Mass. 502, 5 N. E. 632.
It is there said by the court:
“It is true that the bond made the executrix personally liable upon it to the extent of its penalty, but that is not sufficient to exonerate the estate, unless the statutes provide that it shall have that effect. We find no such provision. The purpose of the section was to confirm the doctrine of Gore v. Brazier, 3 Mass. 523, 543, to the effect that The lien on the testator’s estate, real or personal, . . . remains in full force, and the benefit to be derived by a creditor or legatee from the bond is merely cumulative.’ ” Page 505, 140 Mass., and page 633, 5 N. E.
And then, after citing Thompson v. Brown and Clarke v. Tufts, supra, to the exception therein mentioned, it is said :
“But this exception is shown to be consistent with the principle quoted from Gore v. Brazier by the fact that it also is. adopted by the statute. And that principle is so fully recognized by the later decisions that it is only necessary to cite them.” Citing numerous cases. Page 506, 140 Mass., and page 633, 5 N. E. To the same effect: Jenkins v. Wood, 144 Mass. 238, 10 N. E. 818.
So it has been held in Michigan:
“The statutes declaring 'that all of a testator’s property shall be chargeable with the payment of all of his debts create-an equitable lien in favor of creditors, which is not destroyed by the execution of the statutory bond by a residuary legatee,, which becomes an additional security for such payment.” Lafferty v. People’s S. Bank, 76 Mich. 35, 43 N. W. 34. See, also, Blackmore v. Perkins, 95 Mich. 446, 54 N. W. 945.
In a later case in that state it has been held, in effect, that the “right of disposition of the property” of the estate by an executor and residuary legatee in the will, who has given
“It is only when, by the terms of the will, the executor is such sole or residuary legatee, and the same is judicially determined upon due notice and opportunity for bearing, that such transfer becomes complete in law.” Id.
Upon the death of a person bis property not exempt at once becomes “chargeable . , . with the payment of all bis . . . debts,” whether be dies testate or intestate. Secs. 2270, 2277, 2281, Stats. 1898. Union Nat. Bank v. Hicks, 67 Wis. 191, 30 N. W. 235. Tbe statute also expressly provides that “all the estate of the testator or intestate, real and personal, except the homestead of the deceased, and” certain personal property named in the statute, “shall be liable to be disposed of for the payment of his debts and the expenses of administering bis estate.” Sec. 3862, Stats. 1898. Thus, it appears from the statutes, as well as from the decisions in other states under similar statutes, that all property, not exempt, of which a testator dies seised is subject to the payment of bis debts, whether the sole executor and residuary legatee gives the bond required by sec. 3795 or the bond re
2. The complaint alleges that by the will the testator devised to the defendant lots 71 and 72, Original Plat of Ft. Howard, “subject to the payment of debts, funeral expenses, and bequests” therein mentioned; and prays that the plaintiffs claim of $524.16 be adjudged a lien thereon. The answer alleges, in effect, that the whole of said lots, with the dwelling house on lot No! 71, and its appurtenances, except a strip of land on the northerly side of lot No. 72 of the width of 26.23 feet — being the excess over one-fourth of an acre in said lots, constitutes the homestead on which the testator resided at the time of making the will, and has actually been selected, occupied, and claimed by the defendant as her homestead ever since the will took effect, and that during all that time the defendant bad resided thereon in such dwelling house, and still resides thereon. The will gave and devised to the defendant all bis real and personal property which he should own at the time of bis death and which should “remain after payment of” bis “just debts and funeral expenses.” A section of the statute cited provides, in effect,, that, “if a testator shall make provision by bis will . . . for the payment of bis debts,” etc., then “they shall be paid accordingly,” but that “no general direction in any will to pay the debts of the testator out of bis property shall subject the homestead to the payment thereof.” Sec. 3862, Stats. 1898. There can b.e no question but that the quarter' of an acre constituting the homestead is exempt: Sec. 2983, Id. But it is equally certain that the strip of land on the northerly side of
3. The $524.16 claimed by the plaintiff is alleged to be on account of moneys loaned and advanced to the testator, and in bis behalf, and upon bis request, as per statement made a part of the complaint, and under the express agreement therein stated. The statement of the moneys so loaned and advanced commences in March, 1888, and terminates in December, 1894. The answer alleges that, if any of the items mentioned in that statement were paid or incurred by the plaintiff, the same were paid out of moneys ánd property belonging to the testator or bis estate. The court found that such payments were made by the plaintiff at or about the times mentioned in such statement, but that the plaintiff made such payments out of the moneys and property which belonged to the testator or bis estate. The vital question litigated was whether the moneys so paid out were the property of the plaintiff or the property of the testator or bis estate. A large portion of the evidence in support of such finding consists of the testimony of the defendant, taken against objection, to the effect that the testator told her that be bad $1,100 when bis wife died, which the plaintiff' took; that the plaintiff gave back to the testator $300 of thát sum, leaving
“The conduct, admissions, and declarations of a party in his own interest are no more competent as evidence for his estate after his death than for himself while living; and, if such statements were not made in the presence of the adverse party, they are inadmissible in a suit against the estate.” 1 Jones, Ev., § 236.
So it has been held by this court:
“In an action by an administrator to prevent the enforcement of a judgment against his intestate, evidence of declarations of the debtor in his lifetime as to payment of the judgment is inadmissible.” Jilsum v. Stebbins, 41 Wis. 235. See, also, Carlyle v. Plumer, 11 Wis. 96; Ward v. Ward, 37 Mich. 253; Doan v. Dow, 8 Ind. App. 324, 35 N. E. 709.
But it is said that the plaintiff himself opened the door for the admission of such testimony. We fail to find that he gave any evidence of such declaration or communication from the testator to his wife. An exception to the rule stated is
4. Exception is taken because the defendant was allowed to prove, in effect, that April 19, 1890, the plaintiff was sued by his father, and the Kellogg National Bank garnished to-recover back $750 alleged to have been paid to and received by the plaintiff herein May 29, 1888, and that April 23, 1890, the plaintiff herein paid to his father $200, and that thereupon the suit and garnishee action were both discontinued, without costs to either party. The son had the right to compromise and settle that suit in the manner stated, even if he believed the claim to be entirely unfounded. The fact that he did so was admissible in evidence. But such settlement was not an admission on the part of the son that the facts alleged in his father’s verified complaint were true. The extent of the son’s admission was necessarily measured by what he said and did under the circumstances, and not by the complaint made by his father against him. And yet the trial court states, in effect, that such record evidence “conclusively established” not only contradicted “much of the parol testimony, but shows conclusively William Pym’s claim relative to said funds, and the plaintiff's acquiescence in such claim.” No such effect should be given to the compromise of that suit.
5. The defendant contends that the plaintiff’s cause of action, if any, is barred by the six-year statutes of limitation. It is true that the action was not commenced until more than six years after the testator’s death. The contention is that the statutes began to run on each loan and advance immediately when made. Certainly such loans and advances did not constitute a mutual account. Butler v. Kirby, 53 Wis. 188,
By the Gourt. — Tbe judgment of tbe circuit court is reversed, and tbe cause is remanded for further trial and findings as mentioned in tbis opinion, and for further proceeed-ings according to law.