Saddington's Estate v. Hewitt
70 Wis. 240
Wis.
1887
Check Treatment
Taylor, J.

On the part of the respondent it is claimed that this is a proceeding under secs. 3825, 3826, E. S. 18Y8. On the part of the appellant it is insisted (1) that the petition or complaint does not state facts sufficient to authorize the county court to take jurisdiction of the proceeding; (2) that, if the complaint is sufficient to give the county court jurisdiction of the appellant, the findings of the county-court are insufficient to justify any restrictive order of any kind against the appellant; and (3) that the county court, upon a proceeding under said sections, has no power to make any order restraining the appellant in any manner from using any money or property in his hands, especially when he denies that he holds it for the use of the estate to which it is claimed to belong.

We are inclined to hold that the petition is sufficient. Although the allegations of the petition fail to show the embezzlement of any money or property by the respondent belonging to the estate of Saddington, they do show, ff the facts alleged are true, that the respondent has disposed of property belonging to said estate, and that is sufficient to justify the court in proceeding under said section.

The second objection to the order made both by the county and circuit courts, it seems to us is well founded. After hearing the evidence, the county court found, in regard to the note which in the petition is alleged to have been a part of the assets belonging to the Saddington estate, *246that said note was turned over' by tbe administrator, Winters, to John Hewitt, who was one of his bondsmen as administrator of the estate of Saddington, to secure said Hewitt, in part at least, against liability on said bond; “but the court is unable to determine, from the evidence, as to whether said note was the property of said Winters individually or as the administrator of said estate of G. W. Saddington.”

If, in any case upon a proceeding under said secs. 3825, 3826, the county court has any power to make any order restraining the appellant in the use of any money or property alleged to be in his hands, it is very clear that after the court had determined as a fact that the evidence did not show that the appellant had any money in his hands or possession belonging to the éstate of Saddington, there was no ground for making any order restraining the appellant in the use of money in his possession which it did not appear belonged to the estate of Saddington. The statute is very clear in limiting the inquiry under it to the question whether the person called upon to answer “ has concealed, embezzled, conveyed away, or disposed of any money, goods, or chattels of the deceased.” When the county judge found that he was unable to determine from the evidence whether the said note was the property of Winters or of the estate of said Saddington, that should have been an end of the inquiry.

It is urged that as the court has found that Winters turned over the note in question to Hewitt, his bondsman, as collateral security, to be held by him as indemnity against any liability he might be eventually subjected to as the ■ bondsman of Winters, it is immaterial whether the note belonged to the estate of Saddington or not. This fact cannot make a case under the statute, which declares that the proceeding can only be taken when the person charged has in his possession property belonging to the deceased. *247Again, if the administrator, Winters, secured his bondsmen upon his administrator’s bond«by a transfer of the note in question or any other of his personal estate, the person to whom such transfer is made may hold the same against the claim of persons interested in the estate of Saddington. If those interested in the Saddington estate are apprehensive that Winters will not account for the estate in his hands, they can compel him to render his account; and if he fails to render such account and pay over the money which ought to be in his hands, they may sue his bond; and if they obtain judgment upon such bond and cannot make their money of the sureties upon execution, they might, in a proper action, subject to the satisfaction of such judgment any pledges or securities which the administrator had given to his bondsmen to indemnify them against their liabilities on such bond. But we find no authority in the statutes to make such securities the basis of the proceedings authorized in sec. 3825, R,. S.

It is urged that, the evidence not being returned in the record, we must suppose that it was sufficient to charge the appellant with having converted the money or note belonging to the deceased. In answer to that, we have the finding of the facts by the county court upon which he based his order, and the circuit court has not in any way altered or changed such findings of fact; and, if anything may be inferred from his modification of the order of the county court, we think bypassed upon such findings in making such modification.

Upon the findings of the county court, the proceeding should have been dismissed, and, upon the appeal to the circuit court, that court should have reversed the order of the county court, instead of modifying the same.

We are also of the opinion that under secs. 3825, 3826, It. S., no order can properly be made in regard to the property, if any, in the hands of the appellant, and concerning *248which his examination may be taken under said sections. These sections are probably taken from the General Statutes of Massachusetts. The law in Massachusetts was first enacted in 1783. See sec. 11, ch. 32, p. 104, Laws of Mass. 1183, re-enacted in Rev. Stats. 1836 as sec. 1, ch. 65, p. 429; again, in Gen. Stats. Mass, as sec. 6, ch. 96; and again as sec. 1, ch. 133, Pub. Stats. Mass. 1882. There has been no material alteration in the act from its first enactment. This law was enacted in Michigan. Howell’s Stats, secs. 5816, 5811. The statutes of Massachusetts and Michigan are substantially like secs. 3825, 3826, R. S. In Massachusetts and Michigan, the law has always been construed as simply giving the probate court the power to examine the party charged on oath, and as giving no power to make any adversary order in such matters; the object being to aid the parties interested in the estate of a deceased person in discovering property belonging to said estate, and as preliminary to the bringing of some proper action for the recovery thereof, and not as furnishing a method of recovering such property from the party accused for the benefit of the estate. See Boston v. Boylston, 4 Mass. 322; Arnold v. Sabin, 4 Cush. 46; Martin v. Clapp, 99 Mass. 410; Wales v. Newbould, 9 Mich. 91; Perrin v. Probate Judge, 49 Mich. 342; Perrin v. Leppers, 49 Mich. 341. Judge Gary, in his work on Probate Law, construes the act the same as it is construed by the courts above cited. See Gary, Prob. Law, 134, § 351. See, also, O’Dee v. McCrate, 1 Me. 467.

It seems very plain, on the reading of secs. 3825, 3826, that there was no intention that the proceeding should be in the nature of an action to recover the property embezzled or disposed of. Had such been the intention of the legislature, it is certain some provision would have been made authorizing the court to make some order in regard to it. The only thing provided for by the statute is the examination of the party charged, and power given to compel him *249to submit to su'ch examination, ancl there the power granted ends. We think it is clear that rule SII of the county court rules cannot convert the statute which simply provides for the examination of the party charged into a statute making the proceeding in the nature of an action to recover of the party charged the property described in the petition. Under the rule, it would perhaps be competent for the county judge- to make an order in regard to the property in a case where the party proceeded against admitted that he had property in his possession belonging to the estate which he was willing should be held for the benefit of the estate, but it cannot change the law as to a party who contests the right of the estate to the property alleged to be in his possession. That question must be decided in some proper action at law or in equity.

By the Court.— The order of the circuit court is reversed, and the cause is remanded with directions to that court to-reverse the order of the county court.