101 Wis. 434 | Wis. | 1898
In the view we have taken of this case, it will be unnecessary to consider any except the third of the assignments of error, which is that the court erred in directing the jury to find a verdict in favor of the defendant.
The respondent first objects that this error cannot be considered in the absence of a motion to set aside the verdict and grant a new trial. This objection is disposed of adversely to him by the opinion in Plankinton v. Gorman, 93 Wis. 560.
lie next objects to a reversal on this ground, for the reason that jurisdiction in the county court, either to appoint the trustee or to pass upon his account, is not shown to exist. The evidence upon that subject consisted of the testimony of the county judge, who testified that he had the records in the matter of t he estate of J. S. Emerson with him; and thereupon numerous individual papers were offered and received in evidence, including the will of Emerson, with the certificate of probate, the final order of distribution, awarding the fund to S. E. Emerson, the first trustee, and the order appointing Wroe trustee upon the death of said S. E. Emerson, besides
The vital and important question in this case is whether by the giving of the new bond in 1890 the sureties upon the old bond were released from responsibility as to subsequent acts of the trustee. Unlike many states, Wisconsin in 1890 had no statute expressly authorizing the county court to release the sureties upon the bond of administrator, executor, or trustee. The respondent, however, contends that such power is inherent in the county court, as a court of general equity powers, within the scope of its jurisdiction.
The courts of many of the states — indeed, most which have spoken on the subject — have, some specifically and some only generally, expressed opinions against such power. Most of their decisions will be found cited by the text writers hereafter mentioned. The following are worthy of special consideration:
In Wood v. Williams, 61 Mo. 63, the executor, for the express purpose of releasing sureties, but without any order of the court, gave a new bond, which was received and approved by the court. The court held that, except in pursuance of a statute which exists in that state, the court had no power to release sureties on a bond, and that the sureties in question were not released, because the method prescribed by the statute had not been followed.
In Bellinger v. Thompson, 26 Oreg. 320, the court say: “ The power of the county court to relieve a surety on an administrator’s or executor’s bond from liability is purely statutory. After a bond has been given, the heir, legatee, or creditor of an estate acquires and has a vested interest in it, and the power of the county court over it ceases, except in a proceeding authorized by law. . . . The authorities show that it does not follow that, because a county court has power to compel an executor or administrator to give a bond, it also has power to cancel it and substitute another in its place. After the bond has been given, the power of the county court over it ceases; and the heirs, legatees, or creditors for Avhose security it is given have a vested interest therein, of which, they can be deprived only by some proceeding known to the law. ... A rule- permitting a county court on its own motion, and not in the manner provided by statute, to at will relieve a surety on an executor’s bond from liability, would tend greatly to the insecurity of estates, and might in some instances permit the substitution of insolvent sureties for solvent ones. "We are clearly of the.opinion, there
The view generally adopted by the text writers is in accordance with these authorities,— that probate courts have not power to release or modify the liability assumed by sureties upon bonds, unless such authority is expressly conferred by statute. Schouler, Ex’rs, § 111; Brandt, Suretyship & G. § 540; "Woerner, Guardianship, § 43; Woerner, Administration, §§ 142, 255.
On the other hand, neither industry of counsel nor our own research has discovered a single decision sustaining the power contended for, in the absence of statutory authority. The case of International Bank v. Poppers, 105 Ill. 491, is pressed upon our attention with mucll earnestness, but that case merely construes the Illinois statute authorizing the taking of new bonds in certain appellate proceedings as relieving from farther liability sureties on a former bond. It is some authority to support a contention that the language used by the county court of Fond du Lac county would indicate an intention that the “ new bond ” should be in substitution for the old, and relieve the sureties on the latter from further liability, if that court had the power so to do. That case, however, does not hold that any such power is inherent in courts.
The question before us is new in Wisconsin, and conclusions reached by other courts, while valuable assistance to us, are not controlling. We are, however, not wholly without intimations in previous decisions of this court as to the general powers of our county courts, which may aid us. In Crawford Co. v. Le Clerc, 3 Pin. 325, it was said: “ Courts of lim
Again, it is to be noted that in the statute of 1849 (now sec. 3967, Stats. 1898), from which date the general powers of our county court, it was deemed necessary to legislate expressly that under certain circumstances the sureties upon a guardian’s bond might be discharged; a wholly unnecessary piece of legislation, if that authority had already been conferred by implication from the general grant of power; significant, however, of the understanding of this creative legislature that the power to terminate liability of sureties upon bonds taken by the county court was not otherwise conferred. Other provisions of that early statute indicate how limited was understood to be the authority conferred on county courts by what is now sec. 2443, Stats. 1898, neces-~ sitating the express conferring of .such powers as those specified in what are now secs. 2446, 2461. Certainly the power to appoint an interpreter to facilitate the conduct of its business, or the power to accept the resignation of one of its own officers,— as an administrator, — is much more likely to be within the inherent administrative powers of the county court than the act of releasing sureties to a bond upon the substitution of others. The argument against the last-mentioned poAver'is much the stronger, for others than the court, namely, the heirs, legatees, creditors, or cesluis qxi& 1/ruslent,.' acquire personal and vested contract rights and interests in
Yiewing the question independently of authority, we must bear in mind that the character of the persons to be protected by bonds taken in probate courts is, in general, such as to invite the special care of the legislature. In many, perhaps in most, cases, they are minor children, widows, or other relatives, who, by reason of some degree of incapacity 'to manage property, have been made beneficiaries of some trusty indeed, in many cases they are persons not yet in being. Even if not thus incapable, they are by the very situation deprived of voice or direction in the management of the property, with no right save to criticise when the time for settlement comes,— perhaps long after the acts ’complained of. For these classes of people the law has always had most anxious care. Considerations of convenience, almost of justice, for thosp placed in charge of their interests havo always been subordinated to regard for the full protection of these helpless ones. That protection is diminished if the discretionary power contended for exists. Every change of secui’ity involves some uncertainty and risk. No human precaution can always prevent irresponsible sureties being accepted, and the means at command of our county courts to guard against such perils are none too ample.
Of course, such considerations as these must yield, if the power to cancel a bond and substitute a new one were essential to the exercise of the jurisdiction imposed on county courts. Brook v. Chappell, 34 Wis. 405. But no such necessity seems to us to exist. The power to remove executors, administrators, and trustees for causes satisfying the judgment of those courts, including insufficiency of security as one of those causes, accompanied by the power to accept additional and cumulative security, is certainly sufficient to enable the court to enforce proper administration by such
Upon reason, therefore, as well as in concurrence with the holding of other courts, and in compliance with what seem to us plain intimations from the legislative enactments and from the prior decisions of this court, we are constrained to hold that county courts, in absence of express statute (as now exists in sec. 42815, Stats. 1898), have no power, either by taking a new bond or otherwise, to discharge sureties from liability for either past or prospective misconduct of an executor, administrator, or trustee, and that the taking of the new bond in this case in 1890 did not release or discharge the defendant’s decedent, but that, such new bond was and is merely cumulative.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.