Wisdom v. Wisdom, 155 Wis. 434

155 Wis. 434 | Wis. | 1914

Maeshall, J.

The trial court sustained the demurrer, as appears from an opinion filed, solely upon the ground that the pleaded facts failed to disclose anything but such a mere legal claim against the estate of Erank Wisdom, deceased, as the county court, having charge of the administration of the estate, has exclusive jurisdiction of.

It may well be that the demurrer was rightly sustained and, yet, the complaint disclose a cause of action for the enforcement of an implied trust. The county court has full jurisdiction, in law as well as in equity, in respect to all controversies involved in the settlement of the estates of deceased persons. Sec. 2443, Stats.; Brook v. Chappell, 34 Wis. 405; Catlin v. Wheeler, 49 Wis. 507, 5 N. W. 935; Tryon v. Farnsworth, 30 Wis. 577; Carpenter v. United States F. & G. Co. 123 Wis. 209, 101 N. W. 404. The circuit court has concurrent jurisdiction; but should not exercise it unless the circumstances are such that the county court cannot afford as complete and adequate remedy as the circuit court. In any case, where the circuit court' has power to deal with the subject involved, in the absence of any good reason why the controversy cannot' as well be settled by litigation in the county court, the former should be considered as without jurisdiction. Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Burnham v. Norton, 100 Wis. 8, 75 N. W. 304.

So, if the facts pleaded are sufficient to show the estate of the deceased, or some part thereof, to be impressed with a trust in appellant’s favor, — that her claim is something more than a mere simple indebtedness, — yet, if it, clearly, can as well or better be dealt with in the county as in the circuit court, then the order appealed from must be sustained on that ground.

We cannot agree with the conclusion reached below that the complaint discloses only a money demand. There are ample allegations to show that Mr. Wisdom, without appellant’s consent, used her property and the proceeds thereof as his own; that he converted her property into, money and, while holding the same as trustee with the income of other property legally belonging to her, or equitably because the same was purchased with her money and the title taken in his name without her consent, he reinvested the same or part thereof in property he possessed at the time of his death.

It is a familiar principle that if a person has money of another apd, without the consent of such other, invests such money in property and takes title in his own name, such property is impressed with a trust, denominated an implied or constructive trust', in favor of such other, and money so fraudulently used can be recovered out of such property, subject only to the condition that it must' be clearly traced thereinto, and that the rights of persons who may have dealt with the property in good faith and without fault, supposing such person to have had, in fact, the relation thereto which he assumed to have, must be deemed paramount to the rights of such, other. The statute, sec. 2079, expressly excepts sucb common-law trusts from the terms of the written law on the subject of uses and trusts. Kluender v. Fenske, 53 Wis. 118, 10 N. W. 370; Perkinson v. Clarke, 135 Wis. 584, 116 N. W. 229; Bosworth v. Hopkins, 85 Wis. 50, 55 N. W. 424.

The complaint, very clearly, states facts sufficient to call for an investigation with reference to the application of the foregoing stated principle. It also states facts showing that appellant has a claim against the Wisdom estate of a purely legal character, in addition to the case made to charge property which Mr. Wisdom died possessed of with an implied trust. The allegations to the effect that Mr. Wisdom used up considerable sums of appellant’s money which he held as her agent' and for which he was liable to account, relate to a claim of the latter character. It is not alleged that these further sums were invested in property which Wisdom had at the end. As to such sums, manifestly, appellant had only a money demand against her husband’s estate; the amount to be determined by an accounting as between trtístee and cestui que trust. A matter of that kind can, ordinarily, be as well litigated in the county as in the circuit' court, though circumstances might be such as to warrant the latter in taking jurisdiction. However, whether to do so or not rests so largely in the discretion of the trial judge that his determination would, in general, be regarded as conclusive on appeal.

There are weighty reasons in this case why the circuit court should not take jurisdiction. Eirst, as we have indicated, all matters involved are within the jurisdiction of the county court and there are no very good reasons why that court should not deal with them as part of the administration of the estate. Second, the claim of appellant affects the real estate of which Mr. Wisdom died seised and the persons to whom it was devised are not parties to the action. There-are many other persons who would be affected by the litigation who were not parties defendant. Only the executor is such. The litigation could not- be allowed to proceed without bringing in all whose interests are. involved. They are parties to the proceedings to settle the estate in county court and can protect their rights there.

So, while the order appealed from must be affirmed, the particular reasoh. given for the decision below, is not approved and appellant is left' without prejudice to her right to proceed in the county court to obtain relief of the same nature as she sought in circuit court'.

By the Court. — The order is affirmed.