Roberts v. Weadock

Decision Date08 February 1898
Citation74 N.W. 93,98 Wis. 400
PartiesROBERTS, COUNTY JUDGE, v. WEADOCK ET AL.
CourtWisconsin Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Judge.

1. Under sections 3853, 3856 and 4014, Rev. St., to the effect that, after the time limited for creditors to file their claims in the settlement of the estate of a deceased person, the county court shall make an order for the payment of the debts in whole or in part, or a dividend thereon, according to the circumstances of the estate; that when the time shall have expired under such order or judgment, the executor or administrator and his bondsmen shall stand personally liable for such debts; that on refusal of such executor or administrator to comply with the demand for such payment, as to any creditor, an action may be brought against such executor or administrator and his bondsmen, for such debt, by permission of the court,--the order or judgment for payment, though made without notice, is not subject to collateral attack. Till reversed on appeal, or set aside in some direct proceeding for that purpose, it is conclusive on all the questions necessarily adjudicated and included within it, among others, that there is a sufficiency of assets to pay the debts.

2. The order permitting suit on the bond may be entered without notice, and is not open to collateral attack. The condition precedent of demand for payment and refusal, which must precede the entry of the order, is not open to question except on appeal from the order, or in some direct proceeding to vacate or avoid it, and if that were not so, an allegation of demand and refusal in the complaint, not put in issue by the answer, is thereby admitted for the purposes of the action upon the bond.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by David E. Roberts against Thomas A. E. Weadock and others. Judgment for defendants, and plaintiff appeals. Reversed.

Action on an administrator's bond. The estate of E. V. Mundy, deceased, being in process of settlement in the probate court of Douglas county, Wis., such proceedings were there duly had that a claim for $2,000, with interest thereon from March 22, 1890, was allowed in favor of Robert C. Ray and James D. Ray. Thereafter James D. Ray died, and Robert C. Ray was appointed as executor of his estate. Defendant Weadock was the executor of the estate of E. V. Mundy, deceased, and the other defendants were his bondsmen. Such proceedings were had after the allowance of the claim as aforesaid, that the county court entered an order for the payment of such claim within a time therein mentioned. Such order was made on a petition setting forth, among other things, the allowance of the claim, and that there was sufficient property belonging to the estate, applicable to its payment, to pay it in full. The order recited as a fact established on the hearing that there was sufficient property in the hands of the executor to pay the claim. Service of the notice of the hearing on the petition was ordered to be made on Ross, Dwyer & Hanitch, attorneys for the executor, and they appeared on such hearing. The claim was not paid as required by the order, and such proceedings were thereafter duly had that the county court, by order, authorized the bringing of this action against the executor and his bondsmen to recover therefor. The complaint sets forth by appropriate allegations all of the aforesaid facts, and that after the claim was ordered to be paid, plaintiff demanded payment thereof of the executor, which was refused. The defendants answered, admitting all the facts alleged in the complaint, down to and inclusive of the order for the payment of the claim. There was no denial of the allegation of demand for payment pursuant to the order, or of the due making of the order, or that the same had not been appealed from or set aside. There was a denial of the sufficiency of assets. On the trial there was evidence on the part of plaintiff that one of the attorneys for the claimants, after the entry of the order for payment of the claim, had some talk with the executor in respect to such payment. There was also evidence that the executor informed such attorneys by letter that there was no money with which to pay the claim; also evidence by the executor to the same effect. Proof was made of all proceedings in the probate court as alleged, and there was no proof to the contrary, except the recital in the order authorizing suit, that the executor appeared in the proceedings to obtain such order, was disproved. At the close of the evidence defendants' counsel moved the court for a nonsuit, which was granted, and the ruling duly excepted to. Judgment was rendered accordingly in defendants' favor, and plaintiff appealed.

Reed & Reed, for appellant.

Ross, Dwyer & Hanitch and T. A. E. Weadock, for respondents.

MARSHALL, J. (after stating the facts).

The questions presented on this appeal are familiar and simple. Section 3853, Rev. St., provides that, “after the time limited for creditors to present their claims has expired, and the amount of the indebtedness of the deceased has been ascertained by the court or commissioners, such court shall make an order or judgment for the payment of the debts of the deceased, in whole or in part, out of the assets in the hands of the executor or administrator for that purpose, as the circumstances of the estate shall require.” Section 3856, Id., provides that whenever an order or judgment shall have been made as provided in section 3853, “the executor or administrator, after the time fixed for the payment shall arrive, shall be personally liable to the creditors for their debts or the dividend thereon, as for his own debt; and he shall be liable on his bond, and the same may be put in action on the application of a creditor whose debt or dividend shall not be paid” as provided in the order or judgment. Section 4014 provides that an action may be brought on the bond of the executor or administrator by permission of the county court, by any creditor, when the amount due him has been ascertained and ordered paid by the court, if the executor,...

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14 cases
  • Grafton v. Hinkley
    • United States
    • United States State Supreme Court of Wisconsin
    • June 20, 1901
    ...373, 378; Kellam v. Toms, Id. 592; Krall v. Libbey, 53 Wis. 292, 10 N. W. 386;Meyer v. Barth, 97 Wis. 352, 72 N. W. 748;Roberts v. Weadock, 98 Wis. 400, 405, 74 N. W. 93;Ingersoll v. Seatoft, 102 Wis. 476, 480, 78 N. W. 576. In such cases the statute, in connection with the contract, contem......
  • S. Sur. Co. v. Burney
    • United States
    • Supreme Court of Oklahoma
    • September 12, 1912
    ...any fraud or collusion, were conclusive upon the sureties, both as to the devastivit and the amount thereof." See, also, Roberts v. Weadock, 98 Wis. 400, 74 N.W. 93. ¶5 To be sure, the rule enunciated in the foregoing cases does not apply specifically to guardianship cases; but the principl......
  • Southern Sur. Co. v. Burney
    • United States
    • Supreme Court of Oklahoma
    • September 12, 1912
    ...any fraud or collusion, were conclusive upon the sureties, both as to the devastavit and the amount thereof." See, also, Roberts v. Weadock, 98 Wis. 400, 74 N.W. 93. To sure, the rule enunciated in the foregoing cases does not apply specifically to guardianship cases; but the principle invo......
  • Carpenter v. U.S. Fid. & Guar. Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • November 15, 1904
    ...attack. Cody et al. v. Cody, 98 Wis. 445, 74 N. W. 217;O'Connor v. City of Fond du Lac, 101 Wis. 83, 76 N. W. 1116;Roberts v. Weadock et al., 98 Wis. 400, 74 N. W. 93;Barney v. Babcock's Estate, 115 Wis. 409, 91 N. W. 982. The principle last alluded to rules the question of whether when thi......
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