Mann v. Everts

• Citation: 25 N.W. 209,64 Wis. 372
• Parties: MANN, AS JUDGE, ETC., v. EVERTS AND OTHERS.
• Decision Date: 03 November 1885
• Court: United States State Supreme Court of Wisconsin

64 Wis. 372

25 N.W. 209

MANN, AS JUDGE, ETC.,

v.EVERTS AND OTHERS.

Supreme Court of Wisconsin.

Filed November 3, 1885.

Appeal from circuit court, Milwaukee county.E. Mariner and Frank M. Hoyt, for respondent, JOHN E. MANN, as Judge, etc.

Joshua Stark, for appellants, Hiram H. Everts and others.

COLE, C. J.

In this case the learned circuit court decided that this action against the heirs of Charles P. Everts was not barred by the proceedings in the county court for the settlement and distribution of the estate of said Everts according to law. The correctness of this decision is the main question to be considered on this appeal. In addition to the facts stated when this case was here on a former appeal, (see 57 Wis. 508, and 15 N. W. Rep. 794,) we may add that Charles P. Everts was one of the sureties on the bond given by Maurice Fitzgerald on obtaining a license to sell the real estate of his intestate. The bond was conditioned that the administrator would justly and truly account for all the proceeds of the sale of such real estate, and dispose of the same according to law, and perform all orders and decrees of the county court by him to be performed in the premises. In November, 1879, Maurice Fitzgerald was cited to render his account as administrator, and the items of that account was the matter considered on the other appeal. This court decided that there remained in the hands of the administrator, unaccounted for, a larger sum than was found by the circuit court. It therefore reversed the judgment of the court, and remitted the cause for the entry of a judgment for the proper amount. In conformity to this direction the county court in probate, to which the cause had been remitted by the circuit court in September, 1883, rendered judgment against the administrator for $1,363.18, the amount of the proceeds of the sale still in his hands, with interest thereon from September 15, 1883. The administrator was ordered to pay this amount over to the heirs of Fitzgerald, or to the persons named, which he neglected to do. This action was then brought under the statute against the heirs of Everts to enforce the liability arising on this bond above named. It appears that Everts died in 1871, while an inhabitant of Milwaukee county. An administrator was appointed to settle his estate. The county court made an order in April, 1873, allowing creditors four months to present their claims against said estate. No claim, contingent or otherwise, was ever presented for allowance on account of any liability upon the bond. In December, 1873, a final decree was entered by the county court settling the matter of the Evarts estate, and distributing the property, both real and personal, to the persons entitled by law to the same.

These are all the facts necessary to be stated in order to understand the position of counsel in the case. On the part of the heirs of the Everts estate it is insisted that all claim or liability against that estate arising upon this bond is barred, because no attempt was ever made to present or to prove it against the estate within the time limited for the presentation of claims; nor within one year after the claim accrued or became absolute. The provisions of chapter 101, 2 Tayl. Rev. St., as amended by chapter 73, Laws 1873, it is insisted, sustains this position. The sections more especially relied upon are 14, 47, 48, 49, 51, 52, and 55. From these and other provisions of the statutes the learned counsel contends that the county courts are the sole tribunals for the adjustment of all claims against the estates of deceased persons, whether such claims are absolute or contingent; and that where administration has been had upon an estate, and notice and opportunity given for creditors to present their claims for allowance, they must do so within the time limited, or their claims will be barred. This is undoubtedly correct as to all claims proper to be allowed by the commissioners. Section 14 expressly declares that unless the creditor shall exhibit his claim within the time limited for that purpose, it shall be forever barred. Section 3844, Rev. St. 1878. The other sections referred to by counsel relate to the allowance of a certain class of contingent claims. Where a person is liable as security for the deceased, or has any other contingent claim against his estate which cannot be proven as a debt before the commissioners or allowed by them, the same may be presented, with the proper proof, to the judge of the county court or to the commissioners, who shall state the same in their report when it is presented to them. If the court shall be satisfied by the proof exhibited of the justness of the claim, it may order the executor or administrator to retain in his hands sufficient estate to pay such contingent claim when it becomes absolute. Sections 47, 48, 3858. Section 49 provides if a contingent claim becomes absolute, and shall be presented to the judge of the county court or to the executor or administrator at any time within two years from the time limited for other creditors to present their claims to commissioners, it may be allowed by the judge, upon due proof, or may be proven before the commissioners already appointed, or before others to be appointed for the purpose, in the same manner as if presented for allowance before the commissioners had made their report. 3859. Section 51 provides if the claim shall accrue or become absolute at any time after the period limited for creditors to present their claims, the person having such claim may present it to the county court and prove the same at any time within one year after it shall accrue, or become absolute; and, when established in the manner prescribed, the executor or administrator is required to pay the same, if he have sufficient assets for that purpose, or is required to pay such part as he shall have assets to pay. 3860. By the next section, when a claim shall be presented within one year...