Will of Hoya

173 Wis. 196 | Wis. | 1921

Eschweiler, J.

Many of the details of appellant’s administration of his mother’s estate we have;.not deemed it necessary to-set forth in the'statement of facts.1 The whole record, however, showing the manner in which- the appellant as' executor conducted his .trust, .presents, ¿'very unpleasant' picture and well deserved the condemnation which it repeatedly received- in the county', court as- well, as that expressed so vigorously in the findings of the circuit court.

Three separate questions are presented oñ this appeal; First, Can the respondent Otto F'. E. Hoya, grandson and beneficiary of the deceased, be now permitted to attack and set -aside the.-sale of-.the homestead by the. executor t.o himself in October, 1914? .Second, Were the obligations:of Fjrdinamd C.Í- Hdya'arising- from the-loans to-him by his mother, and against which'the statute of’limitations had* run at the time of her death, chargeable against him as -assets of- the estate upon his assuming to .-act as executor?.-, and thirdly, Should, .the. amountfof'-the indebtedness of .'the;;. .co-executor, William C. Hoya, to the estate Of his mother-be inCreased herein: over the amount'fixed by thé same-'ícotíhty court in the .hearing upon the ..claim filed by the. appellant here, as executor 6£. his -.'mother’s.estate, against. tHé estafé, of said William' C. Hoya? - -. .' ■ ■■■/■'.; " - --(.y,

:■' .'.The circuit court’'held that the 'sale .of The homestead .in October,:: 1-914,■ the' 'details- of' -which are sét-forth in-the statement of-facts,;,was void under sec: 3914, Stats. ,;This statute, provides, in ..substance, that .áñ 'exéctitór shaJlinot directly or indirectly purchase or be interested in the purchase of any part of the real estate sold by him, and “all sales made contrary to the provisions of this section shall be void.”

The literal language of this last quoted clause of sec. 3914, Stats., has, however, been restricted in that the word “void” as it there appears must be construed to mean voidable; and that an executor so purchasing may nevertheless have and convey good title to third persons unless and except such sale be set aside either by'proper objections to the confirmation thereof or by a direct action. The latter, as is provided in sec. 3918, Stats., must be brought within five years from the sale. That this meaning, and effect must be given to said sec. 3914 has been .repeatedly held. Melms v. Pabst B. Co. 93 Wis. 153 (66 N. W. 518) at p. 164; Gibson v. Gibson, 102 Wis. 501, 506, 78 N. W. 917; Keilly v. Severson, 149 Wis. 251, 255, 135 N. W. 875. See, also, notes in L. R. A. 1918B, 15, 29, 41.

At the time of the decree in the circuit court more than five years had elapsed since the making of the sale. Tn August, 1917, the executor had sold the property to one Gottschalk and he in turn to Mrs. Hoya, wife of the executor. In the following month, she mortgaged the property to a building and' loan association. Neither she- nor the mortgagee was a party to this proceeding, and no .action, up to the time of the entry of the decree herein; had been' brought against them. -The title, therefore, to'this. r'eal estate had by the lapse of time vested in the' purchaser. Sec. 3918, Stats.:; Turner v. Scheiber, 89 Wis. 1, 6, 61 N.W. 280; Keilly v. Severson, 149 Wis. 251, 255, 135. N. W. 875. '/

There is a further reason:why:'the respondent here,- Otto F. E.' Hoya, cannot be permitted to now attack the sale'of the homestead, ■: He, through his attorneys, received notice of all the proceedings with relation to said sale. The report of the sale showed that the property had been purchased by the executor himself. Upon the hearing of the executor’s petition to confirm such sale, the respondent, having had due notice thereof, made no opposition to the same and took no further steps whatsoever with reference thereto or the confirmation thereof until he attempted by his appeal from the final decree of the county court of May, 1918, to raise the same questions thus passed over. He had his day in court upon such sale when the sale proceedings were before the court and is bound thereby.

■ Though the title be confirmed, as we have seen it must be under the sale, the executor may nevertheless be held accountable for- any profits that he may have made, out of the transaction, on the ground that when.a trustee deals with trust property to his own advantage any profit accruing therefrom may be held to be for the benefit of the cestui.que trust. McClear v. Root, 147 Wis. 60, 64, 132 N. W. 539. There is no finding here, however, of any profits out of the transaction, nor evidence that would support such a finding if made. The difference between the appraisal valuation in the inventory of July,-1913, and that made for the. purpose ■of the sale in-October, 1914, is-explained by the testimony of -the• appraisers making the two. appraisals, .and there is nothing in the.-record -that impeaches that testimony.

■■ - -It follows, therefore, that so -far as.the disposition-of the homestead is concerned the decree of. the. circuit court must be--reversed-and that of the county court affirmed..

The indebtedness of Ferdinand A. Hoya to his mother.as scheduled in the inventory filed by him was. made up .of several - items, each of-which was. marked “outlawed” .by him and'appraised as worthless by the appraisers, and were obligations upon which the statute of limitations had .run at .'the- time of- his-mother’s death. ■ ......

• There-is no question raised ■ here • as-to. the general, rule •that a..person accepting such a.trust as. executor becomes ■ thereby-chargeable in .some way with, existing, obligations of his to the estate he undertakes to administer. Wis. Trust Co. v. Cousins, 172 Wis. 486, 179 N. W. 801, 808.

There is a conflict of authorities as to whether or not the same rule applies as to obligations against which a statute of limitations had run during the lifetime of the testator. The line of authorities holding that the statute of limitations does not bar the application of such general rule is in those jurisdictions wherein the statute of limitations is considered merely a statute ol repose, applying to the remedy only, while the contrary view is maintained where it is considered that the statute of limitations destroys the right of action itself and gives rise to a new property right in the debtor. This latter view as to the statute of limitations has been repeatedly asserted by this' court although such view is deemed to be contrary to that of many of the sister states and of the United States supreme court. Hite v. Keene, 149 Wis. 207, 213, 134 N. W. 383, 135 N. W. 354; Laffitte v. Superior, 142 Wis. 73, 84, 125 N. W. 105; Eingartner v. Ill. S. Co. 103 Wis. 373, 378, 79 N. W. 433. Many of the authorities on this question are found in L. R. A. 1918B, 619, and 1 A. L. R. 987.

Being committed, therefore, to the doctrine, that upon the running'of the statute the cause of action is extinguished and a new right comes into existence iti favor of the debtor, of equal value in the eye of the law as was the former right to the cause of action, we feel compelled to now hold that an obligation barred by the statute of limitations at the death of the testator is not to be charged as against the debtor upon his. assuming the duty of executor of the estate of such testator.

We can see no ground upon which it can be held that when the county court, in the matter of the estate of William C. Hoya, passed upon the indebtedness of- William C. Hoya to his mother’s estate as presented upon the issue made by the- filing, of the claim by the appellant here as executor and the objections thereto by the administratrix of William’s estate, and fixed the amount at $3,400, it can, by these proceedings in the mother’s estate, wherein the ad-ministratrix of the estate of William is in no manner a party, be determined to be $15,000. As between the estate of Agnes Hoya and the estate of William C. IToya, the place to determine the liability of William was in the administration of his estate. The determination there stands unimpeached in this record and is binding and conclusive.

It follows therefrom that the judgment of the circuit court setting aside the decree of the county court must be reversed and that of the county court affirmed.

By the Court. — Judgment reversed, and cause remanded with directions to affirm the judgment of the county court.