13 Wis. 291 | Wis. | 1860
This was an action of ejectment, brought by tbe defendants in error to recover tbe possession of certain lands, wbicb they claim as beirs of Pierre Pac-quette deceased. There is no dispute tbat tbe title was originally in him, for tbe plaintiffs in error claim under a sale by an administrator de bonis non, appointed on bis estate, by tbe probate court of Crawford county. Tbe record showing tbis sale was offered in evidence, but was objected to for several reasons, and among others, because tbe appointment of tbe administrator de bonis non was void. If tbis was so, tbe sale by him, of course, conveyed no title.
Whether tbe appointment was void or not, depends on tbe question whether tbe probate court bad jurisdiction to make it. And tbis involves an inquiry of no small difficulty, in view of tbe confused state of tbe authorities upon tbat subject.
I have bad occasion, in tbe cases of Rape vs. Heaton [9 Wis., 328], Wanzer vs. Howland [10 id., 8], and Falkner vs. Guild [id., 563], argued at tbe last term, to express my views fully on tbis subject of tbe jurisdiction of courts, and I do not propose to repeat them here. It will be seen from what I have there said, tbat I am in favor of maintaining some certain and intelligible rules, and not of following a few modern cases, wbicb seem inclined to obliterate all boundaries of jurisdiction, and for tbe sake of confirming judicial sales, wbicb tbe records fail to support, supplying everything by presumption.
It appears from tbe record offered in tbis case, tbat Hercules L. Dousman and Joseph Pacquette were the original administrators, and acted as such from January, 1837, until May, 1841. They then presented a petition asking for a settlement of their accounts, and to be discharged, wbicb was done. In 1845 a petition was presented which appears in the record, and is in these words : “ Tbe undersigned, at tbe request of H. L. Dousman, agent of tbe principal credi
Jurisdiction is tbe lawful authority to bear and determine tbe cause upon tbe allegations made. And tbe best test is tbat given by tbe court, tbat tbe allegations should be sufficient on their face to warrant tbe court to act. Tbe court accordingly apply, or profess to apply, tbis rule to tbat case. They say: “No other requisites to tbe jurisdiction of tbe county court are prescribed than tbe death of Grignon, tbe insufficiency of bis personal estate to pay bis debts, and a representation thereof to the county court where he dwelt, or bis real estate was situate, making these facts appear to tbe court.” In tbat case tbe record showed tbat a petition was presented, but did not show what it contained. And although tbe court, commenting on tbe looseness and imperfection with which records are sometimes made up and presented, dispensed with tbe necessity of its appearing, yet they do assume tbat tbe facts upon wbicb tbe law authorized a sale were “ represented ” to tbe court, in accordance with their rule tbat sucb representation was an element of its jurisdiction. I think tbis case, therefore, by no means sustains tbe position, tbat a bare request for tbe court to act, setting forth nothing on wbicb to found its action, or even one setting forth none of tbe facts on wbicb tbe law authorized it to act, but others entirely different, would of itself confer jurisdiction. If it would, every means of testing tbe jurisdiction of inferior tribunals is practically annulled. I think, therefore, tbat if- jurisdiction existed to bear and determine
But ^ may be assumed that the petition was based upon the facts appearing of record in the matter of that administration. I think it would be by far the more correct practice, to set forth the facts authorizing the action of the court, in the application. But if those facts appear of record in the same estate, and the court looks at the record and acts upon that, I am willing to hold that it might treat the record as a representation of those facts, and that its action should not be avoided for want of jurisdiction if the previous record showed it. The court did look into the record in this case, and the validity of its action must therefore depend upon the question whether that showed such a state of facts as’ gave it in law the power to appoint an administrator de lonis non. The Territorial Statutes of 1839 were in force at that time. On page 296 is found the act establishing courts of probate, and conferring their jurisdiction and powers. They had power to take the probate of wills, grant letters of administration on the estates of persons deceased, having been inhabitants of or residents in the same county at the time of their decease, appoint guardians, &c., examine and allow accounts, &c., and to “have cognizance of all such other matters and things as the laws of this territory do or may direct.” Section 6 of “ An act concerning executors and administrators,” p. 311, provides that when an executor or administrator should reside out of the territory, and refuse to settle his account, &c., “ or when any executor or administrator shall become insane, or otherwise incapable of, or otherwise unsuitable to discharge the trust reposed in him, the judges of probate, in their respective counties, are authorized and empowered in such cases to grant letters of administration with the will annexed or otherwise, as the case may require, to such other person within the territory as to the said judges may seem meet;” and the administrator thus appointed “ shall have the same power and authority to administer the estate of the deceased not administered upon by the former executor or administrator, and be subjected to the same duties, in as full and ample manner as if the execu
It is obvious that the probate court had no jurisdiction to appoint an administrator de bonis non, unless the case came within some of the provisions of the statute, nor unless the powers of the original administrators were legally at an end. They were not dead; they had not removed from the- territory ; they had not been required to give further security and refused; they had not been removed from the trust on account of any alleged insanity, incapacity, or unsuitableness. All this appeared on the face of the record. It is difficult therefore to see how it can be said that any of the contingencies had happened upon which the statute authorized the appointment of an administrator de bonis non. The record shows simply that the administrators had presented a petition in which they averred that they “ had duly administered upon said estate, and settled and adjusted the personal property and part of the real estate;” “therefore, they asked to have their accounts allowed, and to be discharged from the trust as administrators.” Upon the hearing, the court found that they had “ performed their duties as administrators according to law,” “ had rendered true accounts,” and therefore their accounts were allowed, and they
But it might, perhaps, without doing violence to the substance of the proceeding, be held equivalent to a resignation, and an acceptance thereof by the court. And the question would then be, whether they had any authority to resign, or the court any power, in that state of facts, to appoint an administrator de bonis non. Though I had never had occasion to examine it, when this question was suggested on the argument, I was strongly of the opinion that such power existed But upon an examination of the authorities, I have
Provision is made for such appointment in several emergencies. This not being named, the maxim expressio unius exclusio est cdterius, would seem to apply, particularly in connection with the rule that the powers of these courts are de-. rived entirely from statute. Still if it were well established at common law or by the practice in other states, independent of statutory provisions, that administrators might resign and new letters be granted, I should labor hard to resist the application of this maxim, and to hold that the legislature intended that the probate court should exercise this power, according to such common practice, even though not provided for. But I find no such practice established either at common law or by the decisions of other states. On the contrary, the weight of authority and the course of legislation upon the subject indicate that such power of resignation does not exist in the absence of a statute authorizing it. In Hensloe’s Gctse, Coke’s Reports, vol. 5, p. 67, the law is thus stated: “ Eor after the executors have once administered, and so have once taken upon them the charge of the execu-torship, they cannot afterwards refuse.” And on page 68 it is stated that the ordinary had no power to accept a refusal in such a case, his power being exhausted on proving the will. In 1 Salkeld, p. 308, the same rule is stated. It is said: “ The executor, by administering, has taken upon him the executorship and has put it out of his power to refuse. 9 Co., 36, b, jHensloe’s Case. And where an executor administers, though he refuses afterwards before the ordinary, yet administration cannot be committed during his life, and if administration be granted it is void, and so is 1 Mod., 213, Parten’s dase.’’ Parten’s Case sustains the position. An executor had intermeddled with the goods of the testator, and afterwards refused before the ordinary, who thereupon granted administration. This grant was held void, for the
In Jackson vs. Whitehead, 3 Phillim. Ecc. Rep., 577, the same rule is recognized, though an executor was there allowed to renounce after taking the oath and giving an appearance, but this was placed expressly on the ground that he had not intermeddled with the effects so as to charge himself as executor. But there seems to be some conflict in the English authorities on the point, which is noticed in "Williams on Executors, vol. 1, p. 227, where it is conceded that the old cases hold that there would be a want of jurisdiction in the ordinary to grant administration after the executor has administered. It is said that those cases were decided while there was great jealousy of the ecclesiastical courts. And the author then proceeds with great caution to say: “ The law, it should seem, is now taken to be, that the ordinary may (though perhaps he ought not), accept the executor’s refusal, notwithstanding he has administered.” But the authorities cited seem to me to go no further than this, that where an executor refused to act when cited by the ordinary, administration granted would not be held void, except as a protection to the executor, on proof that before refusal he had acted in pais. To that effect are the remarks of the lord chancellor in Doyle vs. Blake, 2 Sch. & Le., 237, where he said “ the acts in pais of the executor could not be set up against his renunciation,” by a third party. But these cases do not go to the extent of saying that after the executor has proved the will and afterwards administered, he may still at any time renounce the trust, and the ordinary have power to grant administration. I have found no English cases establishing that position. On the contrary the point of controversy seems to have been, whether he was absolutely precluded from renouncing when cited by the ordinary, by mere acts in pais before proving the will. And this seems to imply that if he did not then renounce, but proved the will and afterwards acted, there was an end of the question of renunciation, or the power of the ordinary to grant administration. And there is some reason for the position taken by the cases last alluded to. Eor the ordinary would not know of the acts in pais of the executor, rendering
In this country there are several decisions upon the point. In Flinn vs. Chase, 4 Denio, 86, it was expressly held that the surrogate bad no jurisdiction to accept the resignation of an administrator, and to appoint another, and that having done so, the new appointment was void. In Washington vs. Blount, 8 Ired. Eq., 253, the court say: “ Can the executor resign? We think not. He has accepted and entered upon the discharge of bis trust, and can only be removed upon a suggestion of unfitness or unfaithfulness.” In the case of Ford vs. Travis, referred to in the opinion of Chief Justice Maeshall, 8 Cranch, 27, the court of appeals of South Carolina said, that having proved the will, the executor “ was in the nature of a trustee; he could neither abandon his trust nor be deprived of his interest in the estate of the deceased by any act of the ordinary. The ordinary, by proving the will, executed his power, and no law exists in this state authorizing him to resume it during the life of the qualified executor, notwithing he may be absent from the state. Letters of administration granted under such circumstances are void ah initio.” In the matter of Dyer, 5 Paige, 534, the chancellor said the surrogate had no power to accept the resignation of a guardian appointed by himself, unless provided for by statute. In Miller vs. Meetch, 8 Barr, 417, the executor had renounced, but it was claimed that he had been sworn as such and therefore could not renounce. The court held that he might renounce notwithstanding, following the English cases before referred to. But they said expressly that if he had also “received and administered any of the assets of his testator, the power to relieve him of the burden of the trust could only be exercised by the or
In Thayer vs. Homer, 11 Met., 104, tbe executors bad Provec^- *hewill,and qualified according to law. Afterwards one of them presented a petition to tbe judge of probate, setting forth that some question bad arisen as to his right to certain property under the will, and that in litigating that question Ms interests would be in conflict with bis duties as executor, and asking leave to resign and be discharged for that reason. Tbe statute there in force was tbe same as our territorial statute of 1839, authorizing a removal of tbe executor because insane, incapable or otherwise evidently unsuited to discharge tbe trust. Tbe counsel contended that tbe executor bad no power to resign, and cited a subsequent statute expressly authorizing such resignation, to supply tbe defect previously existing in tbe law. He further contended that tbe reasons set forth in tbe petition did not constitute such unsuitableness as tbe statute contemplated. But the court held that tbe probate judge bad jurisdiction of tbe application to remove, on tbe alleged ground of unsuitableness, and that therefore tbe case came within tbe statute, and tbe decree was not a nullity. They do not say expressly that tbe executor could not resign without any reason whatever, yet I think it is implied almost as clearly as though they bad said it. For tbe point having been made by counsel, it is hardly to be presumed that they would have entered into a labored argument to show that tbe grounds of unsuitableness set forth in tbe petition brought tbe case within tbe jurisdiction of tbe probate judge under tbe statute, if, independent of any statute, be would have bad jurisdiction to accept tbe executor’s resignation and discharge him at any time, without other reason than bis own wish. And indeed it was expressly decided in that state, in Sears vs. Dillingham, 12 Mass., 368, that an executor accepting tbe trust and qualifying, could not be permitted to resign. There are also statutes in several of tbe states providing that executors and administrators may resign, showing an understanding on the part of their legislatures that a statute was needed to authorize it.
I do not determine to what extent presumptions may be indulged in to support the proceedings of probate courts, where no want of jurisdiction appears on the records. There are several cases which seem inclined to place them on the same footing as courts of general jurisdiction. But here, if correct in the position that in the absence of a statutory provision, an administrator cannot resign, nor a new one be appointed, the want of jurisdiction appeared on the face of the record offered.
I have examined this question carefully, and have come unwillingly to the conclusion stated. I think the law should provide for such resignation. - But as I am to determine what the law is, and not whát I think it ought to be, I am forced to say, that in the absence of a statute authorizing it, the probate courts have no power to appoint an administrator de bonis non on the resignation of the original administrator.
I think the judgment should be affirmed.
To defeat a recovery in this action, tbe plaintiffs in error on tbe trial offered in evidence a certified transcript of tbe record of tbe proceedings of the probate court of Crawford county, in tbe matter of tbe estate of Pierre Pacquette deceased, tbe ancestor of tbe defendants in error, .pOT ^ pUrp0ge 0f s]20Wj.ng a sale 0f tbe land in controversy for tbe payment of tbe debts of said Pierre Pacquette. Tbe plaintiffs in error claimed title under this sale, by certain mesne conveyances from tbe purchaser. To tbe reading of tbe record in evidence an objection was taken, and tbe same was excluded by tbe court. It does not appear upon wbat ground tbe circuit court ruled out tbe record, but it was probably held inadmissible for tbe same reasons which have been given on tbe trial in this court to show that it was not competent testimony for any purpose. It therefore becomes necessary to notice tbe various objections taken to the record. One objection taken was, that tbe lands in controversy were not liable to be sold to pay tbe debts of Pierre Pacquette, without tbe consent of the President of tbe U. S. It was conceded that by tbe statute in force in the territory of Wisconsin in 1836, tbe time of tbe death of Pierre Pacquette, when the goods and chattels belonging to the estate of any person were not sufficient to answer the just debts of the deceased, and this fact being made to appear to tbe probate court of tbe county where the deceased person last dwelt, or of tbe county in which such real estate might be situated, that then such probate court was generally authorized and empowered to license tbe executor or administrator of such estate to make sale of the real estate so far as the same might be necessary to satisfy tbe debts which tbe deceased owed at tbe time of bis death; but it was insisted that on account of tbe restriction contained in tbe patent from tbe U. S. to Pierre Pacquette, tbe lands in question could not be sold for any purpose without tbe permission of the President. It appears that by the fifth article of a certain treaty made in 1839 between tbe U. S. and tbe nation of tbe Winnebago Indians, tbe U. S. agreed to grant to Pierre Pacquette two sections of land, and by the terms of tbe article, the grants were not to be leased or sold by tbe grantees to any person,
It is very difficult to perceive how any force or effect can be given to this restriction on the power of alienation, which is contained in the last clause of the patent. The patent grants to the patentee an absolute estate in fee simple in the land therein described, while it attempts to impose a restraint upon the power of alienation by saying that the grantee shall not lease or sell the lands to any person without the permission of the President. A condition in a grant or devise, that the grantee or devisee shall not alienate, is said to be unlawful and void, because .it is repugnant to the estate granted. Co. Litt., 206, b, 223, a; 4 Kent’s Comm., 131; The Blackstone Bank vs. Erastus Davis, 21 Pick., 42; 18 id., 455. This is not strictly what is termed a condition in law, either precedent or subsequent, annexed to the estate granted. There is no forfeiture of the estate if the lands are sold or leased without the permission of the President Whether it might not be competent for the United States, in the exercise of their absolute dominion over the public domain, to impose conditions upon the lands granted which might infringe upon the essential enjoyment and independent rights of property, it is not necessary to determine. Manifestly such conditions would tend to public inconvenience, and-would be contrary to the whole policy of the
But again it is insisted that the proceedings in the probate court of Crawford county, so far as the sale of the lands is concerned, are null and void. The first specific objection taken to them is, that it appears therefrom that the license for the sale was not obtained, or the sale made, by the original administrators of the estate of Pierre Pacquette. In the present state of this record it is undeniable that this raises.a question of great difficulty, and candor compels me to say that I am not entirely satisfied with my own conclusion. Having some knowledge of the loose way in which business was transacted by the probate courts of the territory, fifteen' years ago or earlier — of the imperfect manner in which their records were generally kept — of the confidence in the validity of titles derived from probate sales, which the decision of the territorial supreme court in the case of Grignon et al. vs. Astor et al., in 1841, was so well calculated to inspire; consid
In the present ease no objection is taken to.the regularity of the proceedings in the probate court up to the time of the appointment of an administrator de bonis non, who obtained the license and made sale of the lands in dispute. It is conceded that the probate court of Crawford county had jurisdiction of the subject matter of the settlement of the estate of Pierre Pacquette. The record fully shows that H. L. Dousman and Joseph Pacquette were lawfully appointed administrators of the estate in the first instance, and acted several years in that capacity. But it is contended that it appears from the record that they were not removed or discharged from their trusts for any cause which authorized the probate court to remove one administrator and appoint another, and therefore that such court had no jurisdiction to appoint an administrator de bonis non; and this being so, that all the proceedings of the latter in obtaining the license to sell and making sale, were null and void. But I think the most that can be said of the record upon this point is, that it fails to disclose any ground for discharging the former administrators and for appointing one de bonis non. It does not show that they were not discharged from their trusts for a good and valid cause — one which authorized the probate court to discharge them. As I understand it, the record is entirely silent upon the point. It appears that on the 17th of May, 1841, the administrators presented their account with the estate to the probate court or Crawford
Nor do I understand that this view of the effect of the record when offered in evidence in a collateral proceeding, essentially conflicts with anything decided in Bloom vs. Burdick., 1 Hill, 130; Schneider vs. McFarland, 2 Coms., 459, or Palmer vs. Oakley, 2 Doug. (Mich.), 433. In the first two cases it appeared that the plaintiffs, at the time of the application to the surrogate for license to sell real estate, were infant heirs of the decedent, and that no guardian was appointed for them by the surrogate as the statute required ; nor did any guardian appear or act for for them in any stage of the proceeding. The statutory method of bringing the infants into court was not pursued, and therefore the court held in each case they were not bound. In the case of Palmer vs. Oakley it did' not appear on the face of the decree of the probate court appointing Archangi Simmons guardian, that the minors were under fourteen years of age, or that they were cited to choose a guardian, and evidence was offered on the trial to show, that at the time of the appointment of the guardian, one of the alleged infants was over fourteen years of age, and that consequently the probate court had no power to appoint a guardian for him without first citing him to appear and choose his own guardian. These cases present a different question from the one at bar, where there is nothing to show the absence of authority to make the removal. From this view of the record it seems unnecessary to examine the question so fully discussed by counsel, as to whether an administrator, who has once entered upon the duties of his trust, can afterwards voluntarily resign at his pleasure. Again it is said that at the time application was made by Brunson, as administrator, for leave to sell the real estate, the defendants in error were minor heirs of the deceased, and
Some minor objections were taken to the validity of the record offered in evidence, as that the administrator did not give the bond required by law previous to the sale of the real estate, and that the administrator had no right to adjourn the sale “for wantof a bidder,” to the next day. Ithink the bond given was a sufficient compliance with the statute, and that there was no error in adjourning the sale for the reason assigned.
It follows from these views that I think the circuit court
Judgment affirmed.