Reed v. Wilson

73 Wis. 497 | Wis. | 1889

Taylor, J.

The only question discussed upon-the appeal from said order was “ whether the county court had authority, under the laws of this state, to compel the executrix of the deceased executor of the will of said Terry to render and settle the account of her testator as executor of the will of said Terry.” This question has not been heretofore passed upon by this court, and is a question not entirely free from doubt.

The rule of the English law that an executor of an executor is the executor of the first testator, and must execute the will of the first testator, is abolished by statute in this state. See secs. 3258, 3800, R. S. 1878. Sec. 8258 reads as follows: “ An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects, or rights of the testator of the first executor, or to take any charge or control thereof as such executor.” This section clearly prohibits the executrix of Alexander Wilson from in any way intermeddling with the estate of the testator Terry, and from commencing any action or proceeding in relation to such estate as such executrix. So far the statute is very clear. Sec. 3800, R. S., provides for the appointment of an administrator with the will annexed for the purpose of completing the administration of the will of the testator Terry. Under these sections it appears to us that the executrix of the estate of Alexander Wilson has no duty to perform in regard to the settlement of the estate of Terry merely by reason of the fact that she is the executrix of her husband’s will. She is a stranger to the administration or execution of the will of Terry, and can no more be called upon to settle that estate than if she had not been named as executrix of the will of her husband. This has been so held by the courts of New York, New Jersey, California, and Illinois, under similar provisions of law. Schenck v. Schenck's Ex'rs, 3 N. J. Law, 562, 563, 565; Dakin v. Demming, 6 Paige, 95; Bush v. Lindsey, 44 Cal. 121; Wetzler v. Fitch, 52 Cal. 638; In re Fithian, 44 Hun, 457; Tracey v. Hadden, 78 Ill. 30. But these decisions do not in any way interfere with the rights of those claiming an interest in the estate of Terry to compel the executrix of Wilson, or to compel his widow, irrespective of her representative capacity, to make a disclosure upon oath of any money, property, or effects belonging to the estate of Terry, which may have come into her possession or under her control as executrix of the estate of her husband or otherwise; and she may be compelled by the county court, upon application of some person interested in the estate of Terry, to make such disclosure in regard to such matters under the provisions of sec. 3825, R. S. 1878. This was so decided in the case of Perrin v. Calhoun Circuit Jtidge, 49 Mich. 342, 345. The proceeding in the Michigan case was a proceeding under sec. 4408, Comp. Laws, Mich., which section is literally the same as our sec. 3825, R. S. of this state. The relief which a party may have under said section is commented upon by this court in Saddington v. Hewitt, 70 Wis. 240. Upon the nature of the duties of the executrix, upon the law of this state as it stood previous to the enactment of ch. 1, Laws of 1870, now secs. 3933, 3934, E. S. 1878, and upon authority, we think the county court had no authority to compel the appellant, as executrix of her husband’s estate, to render an account and settle the business of her husband as the executor of the estate of Terry.

It is claimed by the learned counsel for the respondents that secs. 3933, 3934, E. S., confer this power upon the county court. It is admitted that these sections give the county court jurisdiction to settle the accounts of a deceased executor, and it may be claimed that the enactment of these, sections clearly implied that the county court had theretofore power to settle such account; but it is insisted on the part of tl¿e learned counsel for the appellant that, in the absence of any direction as to who shall render or state the account or how the same shall be settled and adjusted, there is no power to compel the executor of a deceased executor to render and settle such account. The claim is that the party or parties desiring to have the account of the deceased executor settled and adjusted must produce to the court the evidence from which the court may state and settle the account, and, if the evidence or any part of it necessary to state such account is in the possession or control of the executrix, it must be obtained from her in the same manner as if it were in the hands or under the control of any other stranger to the estate of Terry. This argument is sustained to some extent by the language of sec. 3933, R. S. The language of the section is: “No action shall be commenced upon the administration bond of such deceased executor or administrator against the sureties in such, bond, or either of them, until such sureties, or one of them, shall have an opportunity to apply for and have a settlement of the administration accounts of such deceased executor or administrator.” The delay in bringing action on the bond is for the benefit of the sureties, and to allow them time to settle the accounts of their principal in his stead. And sec. 3934 expressly confers power upon the county court to settle the accounts of a deceased executor or administrator upon the application of the surety in the bond, or of any other person interested in the settlement, upon notice given, etc.

The provisions of these sections do not pretend to cast any duty upon the representative of a deceased executor or administrator which did not theretofore rest upon him, and, as we have said above, no such duty rests upon such representative under any other provision of the statute. We think the moving party must furnish the proofs -to enable the court to state and settle the account. He can have all the knowledge which the representative has by calling him or her as a witness, and by compelling the production of all books, accounts, or other documentary evidence in the possession or control of the representative, and can obtain a discovery of all property or effects belonging to the estate of Terry in the hands or under the control of the executrix by a proceeding under sec. 3825, R. S. The executrix is undoubtedly a party interested, within the meaning of sec. 3934, R. S., as the settlement of such account might establish a claim against the estate of her testator, and as such she might apply to the county court for a settlement of the accounts of her deceased husband. And in such case she would have to furnish the proofs upon which the accounts should be stated and settled. Rut, if she declines to make the application for a settlement, we are of the opinion that the county court cannot compel her to do so.

By the Court.— The order of the circuit court is reversed, and the cause is remanded to said court with instructions to enter an order reversing so much of the order of the county court appealed from 'as requires the said Frances II. Wilson, executrix, etc., to render and file in the said county court, on or before the 8th day of August, 1888, the final and complete account of the said Alexander "Wilson as the executor of the last will of said John B. Terry, deceased, from the time of his appointment as such executor to the time of his death, and that the said account thus rendered be considered and settled by said court, without further notice, on the said 8th day of August, 1888,. at 9 o’clock a. m. of said day, or as soon thereafter as counsel can be heard; and for further proceedings according to law.