Austin v. Saveland's Estate

• Decision Date: 20 May 1890
• Citation: 45 N.W. 955,77 Wis. 108
• Parties: AUSTIN v. SAVELAND'S ESTATE.
• Court: Wisconsin Supreme Court

77 Wis. 108

45 N.W. 955

AUSTIN

v.SAVELAND'S ESTATE.

Supreme Court of Wisconsin.

May 20, 1890.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

It appears from the record that a short time prior to December 7, 1880, Zachariah Saveland died testate; that his will was admitted to probate on that day; that the executors named therein were thereupon appointed as such, and qualified; that December 7, 1880, it was ordered by the county court, in effect, that all claims and demands of all persons against said deceased be received, examined, and adjusted before said county court; that six months from and after the said date thereof were thereby allowed and limited to creditors to present their claims against said deceased; that, within ten days from that date, notice of the time and place at which said claims might be presented, and of the time limited for creditors to present their claims, be given by publishing the same for four weeks successively once in each week, in the Evening Wisconsin, a newspaper printed in the city of Milwaukee; that said order was made and signed: “By the court. J. E. MANN, County Judge;” that upon the same day a notice was thereupon accordingly made and signed: “By the court. J. E. MANN, County Judge,” reciting the granting of letters testamentary on said estate to the executors so appointed, the allowing and limiting six months from and after that date for creditors to present their claims against said deceased for examination and allowance, and giving notice to the effect that said county court would at regular terms thereof, commencing on the first Tuesdays of May and June, respectively, 1881, at the probate office in said city, “examine and adjust all claims and demands of all persons against the said Zachariah Saveland, deceased;” that June 26, 1885, the said appellant presented his verified petition to said county court, and therein stated, in effect, that he had a valid claim against said estate which accrued July 19, 1884, and since the expiration of the time allowed by law for creditors to present their claims against the same; that said claim consisted of the indebtedness of the deceased upon two promissory notes, each dated April 16, 1879, signed by C. W. Brigham and Z. Saveland, payable five years and three months after date thereof, in and by each of which the said Brigham and Z. Saveland, for value received, severally and jointly promised to pay to said Edward Austin or order the sum of $500, and interest thereon, payable annually, at the rate of 7 per cent. per annum; that there was due to the petitioner upon said notes the whole amounts named therein, with interest from their date.--and prayed for an order allowing said claim against said estate, and for an order fixing the time and place when and at which the petitioner might be heard upon said claim, and prove the same; that thereupon the said county court ordered the said executors to show cause why said claim should not be filed and heard, and providing for the service of such petition and order; that July 6, 1885, the said executors appeared by their attorneys, and demurred to said petition upon the ground that it appeared on the face thereof, and from the records and files therein referred to, that said claim was barred by section 3844, Rev. St., and because the petition did not state facts sufficient to constitute a cause of action, and that said court had no jurisdiction to grant the relief sought; that upon the hearing of said demurrer, September 27, 1888, it was ordered by said county court that the prayer of said petitioner be and the same was thereby denied, and said claim be and the same was thereby disallowed, for the reason that the statutory time had expired in which claims could be filed, proved, and allowed against said estate. From that order and decision the said appellant appealed to the circuit court, when by stipulation an amended verified petition was filed, to the effect stated in the prior petition, and also the facts mentioned, and giving the consideration of the notes, and alleging that the said deceased signed the same as surety for Brigham; that at no time prior to July 19, 1884, could the petitioner have enforced the collection or payment of the same from said estate; that Brigham had failed and neglected to pay said notes, or either of them, or any part thereof, and was insolvent and irresponsible; that said estate consisted of a large amount of real and personal property; that said claim had been presented for allowance within one year after...