223 Wis. 447 | Wis. | 1937
The appellant, Mark Richardson, Jr., contends that the county court erred in several respects in a final judgment entered on July 15, 1936, in the estate of Mark Richardson, who died intestate on January 15, 1930, and was survived by his widow, Tamar Richardson, and five daughters and four sons, including the appellant. In the probate of the deceased’s estate letters of administration were duly issued on April 1, 1930, to his sons John and Lewis, and they promptly qualified as administrators, and filed an inventory and appraisal of the estate’s assets. In November, 1934, a citation was issued upon the application of the appellant requiring the administrators to render and file a full and final account so that said estate would be administered and settled according to law. They answered that in October, 1930, the court had approved of their final account and ordered the distribution of the estate’s assets to all of the heirs in accordance with a contract made by them, and that upon the distribution thereof accordingly each accepted his or her share excepting Mark Richardson, Jr., and that his refusal rendered it impossible to close the estate. Upon a hearing pursuant to that citation, it was established that on September 9, 1930, the administrators had filed their final account and that a hearing thereon was duly noticed and held on October 7, 1930. No objections were filed to that final account, which showed payments of $1,154.56 for inheritance taxes, and $5,345.12 in discharge of all debts of the estate and expenses of administration; and also showed that, in addition to 992.01 acres of farm land with improvements thereon, which the deceased owned when he died, the residue of his estate in charge of the administrators consisted of $47,416.85 in
that the appellant and his five sisters were to have and receive “all of the cash, certificates of deposit and bonds of the estate equally between them,” and that their mother and three other sons “hereby grant and convey the same unto them;”
that those three sons “shall have and take all the real estate, livestock and farming equipment” and the mother and other six children “do hereby grant and convey all their right, title and interest therein” unto those three sons, who are to provide the mother with a home and support;
that the doubtful Drake-Ballard Company and Drake-Jones Company securities be placed with a trustee to be appointed by the county court to liquidate and distribute avails thereof equally among the nine children, and that the estate debts, inheritance taxes, and expenses of administration shall be paid in equal shares by them;
and that the appellant and his sisters and their mother will execute conveyances of their interest in the land, livestock and equipment to the three other children contemporaneously with making and filing of final judgment and distribution.
There is virtually no dispute in respect to any of the material facts which were thus found by the court, excepting on the issues, (1) whether the county court in October, 1930, did approve and allow the administrators’ account; and (2) whether the appellant was notified that the check for his one-sixth share under the contract was available to him, and he refused to accept it or any money at all because he had changed his mind and wanted the contract changed so that he could get some of the land of the estate instead of money.
In respect to the first of those matters in dispute, the record discloses that the court erred in July, 1936, in holding that the court had in October, 1930, confirmed, approved, and allowed the final account. At most, the judge then merely mentally considered the account to be correct in the absence of the filing of any objection thereto. As the 'court said in the written decision pursuant to which judgment under review was entered, “there is no final order allowing nor are there any minutes by the (judge indicating that it was heard.” Under those circumstances, the mere mental conclusion on the part of the judge to allow or confirm the account, without announcing or otherwise duly making an order in open court accordingly, did not have any legal effect.
In relation to the second matter in dispute, the record fully warrants the court’s findings and conclusions. There was ample evidence to sustain the court’s statement in its written decision that the administrators and their attorneys did all that anyone could do in closing the matter as rapidly as possible, and that they would certainly have completed the distribution and settlement in October, 1930, if Mark, Jr., had not prevented it by refusing to accept his share or carry out his part of the contract of March 4, 1930; that a few months after that date he said he wanted land instead of money; that when he called on Mr. O’Brien, the attorney for the estate, shortly after October 7, 1930, and was urged by him to accept the check for his share, Mark, Jr., refused it and said he would never accept it or any money from the estate at all; that he knew very well in the fall of 1930 that distribution had been made to all the others interested and that his check was ready for him; that because of his bitter feeling toward some members of the family, he stubbornly refused acceptance of his share and no one was able to persuade him to change his mind; and that in these circumstances a legal tender of his money would have been useless and unnecessary.
Appellant contends that the jurisdiction of the county court to assign the intestate’s estate was limited to the distribution thereof in accordance with the statutes on that subject and that, therefore, the court erred in adjudging the assignment or distribution thereof in accordance with the contract between the heirs. That contention cannot be sustained.
“The jurisdiction of the county court shall extend to the probate of wills and granting letters testamentary and of administration on the estates of all persons deceased; . . . to all matters relating to the settlement of the estates of such deceased persons.”
Furthermore, it is provided in sec. 318.06, Stats., that,—
“(1) After the payment of the debts, funeral charges and expenses of administration, . . . the county court shall, by a judgment assign the residue of the estate, if any, to such persons as by law are entitled to the same."
“(2) Such judgment may be made on the application of the executor or administrator or of any person interested in the estate. The court shall name therein the persons and assign to each the portion to which he is entitled. The right to recover any such portion from the executor or administrator or from any other person is hereby given to the person entitled thereto."
In view of those provisions and the fact that the contract of March 4, 1930, was a “matter relating to the settlement of the estate” of a deceased person whose estate the county court had jurisdiction of to administer, it was within the power conferred upon that court by sec. 253.03, Stats., to take into consideration and give effect to that contract. Thát was necessary in order to adjudge the assignment of the residue of the estate “to such persons as by law are entitled to the same” as is prescribed in sec. 318.06 (1), Stats.; and, as is provided in sub. (2) of that section, “such judgment may be made on the application ... of any person interested in the estate,” and the “right to recover any such portion ... is hereby given to the person entitled thereto.” Under those provisions the county court’s jurisdiction is obviously broad enough to include the interests of all persons, whether as the heirs or their assignees, in an intestate’s estate which is in the process of administration. So in State ex rel. Peterson
“The county court has full primary jurisdiction to enforce the ante-nuptial contract or to give guidance or direction to the administrator with respect to his duties and obligations in relation thereto. . . .
“In Wisdom v. Wisdom, 155 Wis. 434, 145 N. W. 126, it was held that the county court has full jurisdiction in law as well as in equity in respect to all matters involved in the settlement of the estates of deceased persons. Such jurisdiction is conferred by sec. 2443, Stats, [sec. 253.03], and is also declared in Brook v. Chappell, 34 Wis. 405; Catlin v. Wheeler, 49 Wis. 507, 5 N. W. 935; Tryon v. Farnsworth, 30 Wis. 577; Carpenter v. U. S. F. & G. Co. 123 Wis. 209, 101 N. W. 404. . . .
“In accordance with the legislative scheme heretofore referred to and declared in numerous decisions above cited, all actions and proceedings coming within the jurisdiction of the county court and in which the county court can afford adequate relief should be there tried. The county court has before it in the action in question all of the parties and has full jurisdiction of the subject matter. The orderly procedure in the matter of administration of estates of deceased persons therefore requires that matters like those involved in the instant case should be adjudicated in that court and not in the circuit court, and a party interested therefore cannot be compelled to litigate in the circuit court in a matter where full relief can be granted in the county court.”
See also Gary, Wisconsin Probate Law (4th ed.), p. 6, § 5, p. 7, § 5; Crow v. Day, 69 Wis. 637, 35 N. W. 45; Liginger v. Field, 78 Wis. 367, 370, 47 N. W. 613.
However, it must be noted in this connection, that, in this state, in probate proceedings under a will the county court’s
On the other hand, although the court had jurisdiction in this case to assign the assets in accordance with the contract, its jurisdiction as a court did not also extend to the appointment of a trustee. In that respect appellant’s contention must be sustained. Under the terms of sec. 253.03, Stats., the county court is given jurisdiction in respect to trusts and trust powers only to “all cases of trusts and trust powers created by will admitted to probate in such court.” That provision, construed in the light of the maxim, expressio unius est exclusio alternis, fails to confer jurisdiction upon the county court in respect to trusts or trust powers created otherwise than by a will. Consequently, as we held in Newcomb v. Ingram, 211 Wis. 88, 98, 243 N. W. 209, 245 N. W. 121, 248 N. W. 171, that court is without jurisdiction to appoint a trustee for a trust created solely by the acts or contract of the widow and the children of a deceased. Therefore, the provision in the judgment appointing W.'Raymond Jamieson as a trustee to take over and liquidate certain securities cannot be sustained, and the judgment must be modified in that respect. However, as the provision in the contract which creates that trust is not invalid, upon the proper appointment of a trustee thereunder those securities can be assigned by the county court to such trustee and thereupon the trust can be executed.
Appellant further contends that even if the court had jurisdiction to assign the residue of the assets of the-estate pursuant to the contract and to approve of their distribution
It is true, as appellant contends, that the provision in the judgment which reads, “That all the aforesaid real estate ... be and the same are hereby assigned and distributed equally to John, Charles and Lewis Richardson in fee simple, charged only with the right of Tamar Richardson, widow, to have her home and support,” etc., — is erroneous in so far as it provides, in effect, that the title of the three brothers is subject only to the right of Tamar Richardson. That statement fails" to duly reserve also the inchoate dower rights of the wife of the appellant. Her right in that respect would have to be recognized, and an allowance made therefor in partition proceedings, sec. 276.36, Stats.; and the respondents’ counsel concede that the judgment cannot divest her of her dower right. Consequently, that provision in the judgment should be modified so as to also reserve that dower right.
By the Court. — Judgment modified as directed in the opinion; and affirmed as modified, without costs. The appellant shall pay the clerk’s fees.