| Wis. | Jun 15, 1872
Tbe record shows that personal property of the estate of Josiah A. Tryon came into the bands of the administrator of that estate, and although it is not expressly made to appear that the proceeds thereof were applied in payment of the debts against the estate, the contrary does not appear; and inasmuch as the statutes (Tayl. Sts., 1221, § 6), provides that
Hence, Ellen A. Tryon, the widow of the intestate Josiah A. Tryon, was only entitled to the use of the surplus $1,826.34, re-maming after the estate of the intestate was settled, during her natural life, and after her decease, the same descended to the brothers, and to the children of the deceased brother and sister, of the intestate in the proportions prescribed by the statute. It was deemed proper briefly to state these propositions, although it is not understood that they are seriously controverted by the learned counsel for the defendants.
We will now proceed to examine in their order, the grounds urged on behalf of the defendants for a reversal of the judgment of the circuit court.
I. It is said that this is a matter cognizable exclusively by a
Tbat a court of equity bas jurisdiction of tbis subject matter, and would take cognizance of an action brought for the purpose of compelling the executors of Mrs. Tryon to pay the surplus of her husband’s estate received by her, to the heirs-at-law of her deceased husband, is doubtless true. Tbe authorities cited by counsel for the defendants show tbis, but they do not seem to establish the doctrine tbat probate courts have not jurisdiction of the same subject matter in tbis state. Tbe county courts have plenary jurisdiction in all matters of the administration, settlement and distribution of the estates of deceased persons, and much of tbis jurisdiction is of an equitable character and is necessarily concurrent with tbat of courts of equity. Tbe claim of the heirs of Josiab A. Tryon against the executors of bis widow, is purely a matter of administration and distribution. Tbe question involved is, whether a sum of money wbicb bas come to the bands of the executors as an asset of the estate of Mrs. Tryon is really such asset to be distributed to her heirs or legatees, or whether it is an asset of the estate of her deceased husband wbicb should be distributed to bis heirs. ¥e cannot doubt the jurisdiction of the county court in the premises.
II. It is said tbat tbe whole subject of tbe alleged claim is res ad judicata so long as tbe order or judgment of tbe county court distributing tbe surplus to Mrs. Tryon remains unre-versed.
We find no bill of exceptions in tbe record, and, therefore, tbe evidence is not before us. We can only ascertain tbe character of tbe order or judgment of tbe county court from tbe findings of fact by tbe circuit court, tbe seventh of wbicb, and tbe only one tbat contains any reference to tbis subject, is as follows : “ That on tbe said 16th day of November, 1865, said county court by an order, directed tbe said sum of $1,826.34 to
Here is no evidence that the county court adjudicated the matter and decided and adjudged that Mrs. Tryon was the absolute owner of the surplus. On the contrary, the order is entirely consistent with the theory that the county court simply held that she was entitled to the use of the money for life. That court not having determined whether she was entitled to the surplus absolutely, or only for life, the question remains open. Howe v. McGivern, 25 Wis. 525" court="Wis." date_filed="1870-01-15" href="https://app.midpage.ai/document/howe-v-mcgivern-6600396?utm_source=webapp" opinion_id="6600396">25 Wis. 525.
III. The next reason assigned why the judgment should be reversed is, that it should only have been rendered for the heir who appealed from the order of the county court. We think that this point is well taken. We are aware of no provision of law which authorised the circuit court to give judgment for parties affected by the order of the county court who did not appeal therefrom. Until such persons appeal therefrom, or take some other steps to have that order set aside, the presumption is that they are satisfied with it, and do not wish that it should be disturbed. For this reason the judgment of the circuit court must be reversed.
IY. No good reason is perceived why the claim of the plaintiff should be certified back to the county court, to be paid with the claims of creditors in due course of administration. Tbe judgment of the circuit court is to the effect that certain moneys which have come to the bands of the defendants as executors, are not assets of the estate of their testate, and liable for debts and demands against the same, but are really assets of another estate, to wit., the estate of Josiab A. Tryon, and belong absolutely to bis heirs. Their position is the same as though the lands belonging to the estate of the latter bad not been sold, but bad come to the possession of the executors as assets of the estate of Mrs. Tryon. In that case the county court, by viuetr
The fact that in this case the subject matter of the controversy is money instead of land, is quite immaterial. It is in the hands of the executors; and creditors, heirs or legatees of their testate have no interest whatever in it. It belongs absolutely to the heirs of Josiah A. Tryon, and the circuit court may as well direct the proportion thereof belonging to this appellant to be paid to him by the executors, as to send the case back to the county court with directions to that court to make the same order.
The judgment of the circuit court is reversed and .the cause must be remanded with directions to that court to enter judgment for the appellant in that court for his individual proportion of the surplus of the estate of Josiah A. Tryon, (being one-fourth thereof,) which was paid over to his widow, Ellen A. Tryon, to be paid by the executors out of the estate of the latter. The judgment of this court must also be certified to the Fond du Lac county court, pursuant to law.
By the Cowrt.~ — Ordered accordingly.