Barney v. Babcock's Estate

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Barney v. Babcock's Estate, 115 Wis. 409, 91 N. W. 982 (Wis. 1902)
• Decision Date: 21 October 1902
• Parties: BARNEY, COUNTY JUDGE. v. BABCOCK'S ESTATE.

115 Wis. 409

91 N.W. 982

BARNEY, COUNTY JUDGE.

v.BABCOCK'S ESTATE.

Supreme Court of Wisconsin.

Oct. 21, 1902.

Appeal from circuit court, Dodge county; James J. Dick, Judge.

Proceedings by J. A. Barney, county judge, to establish a claim against the estate of J. H. Babcock, deceased, on a liability alleged to have been incurred on an administrator's bond. From a judgment of the circuit court reversing a judgment of the county court and dismissing the claim, plaintiff appeals. Reversed.

Facts: Josiah Woodward died testate March 1, 1877. His will was admitted to probate in the county court for Dodge county, Wis., April 9, 1877. His property, after the payment of his debts and the expenses of the administration, was willed to his wife for life, and thereafter one-half to Edward H. Woodward, his son, and one-half to Lucy M. Thomas, his daughter, the latter portion to be held in trust by the son and the income thereof paid her during her life, and the principal then to be paid to her children in equal shares. The widow and son were designated in the will as executors. The widow died previous to the admission of the will to probate, so the son was approved as sole executor and duly qualified as such. In the due execution of his trust he converted the realty into personalty, and thereafter such proceedings were duly had that his final account of all proceedings required as executor, except in relation to the trust fund, was settled and allowed March 25, 1878. The judgment in that regard adjudged the amount of the trust fund belonging to the widow and the daughter to be $2,329.42. The material part of the order settling the account, determining the amount of the trust fund, and adjudging the manner of its custody and disposition, in terms discharged the executor as such, and his bondsmen, upon condition of his delivering such fund to the persons entitled thereto in accordance with the will, and reserved the liability of such bondsmen until such delivery or until the court determined otherwise. May 28th thereafter, Woodward, still pretending to act as executor, loaned the trust fund to John Rose for the term of five years, taking, in his said representative capacity, the latter's promissory note therefor, secured by a real estate mortgage. Thereafter, upon a petition to the county court made by Woodward as executor, setting forth that for reasons stated he would be thenceforth unable to properly execute the trust in regard to said trust fund, he applied for the appointment of an administrator de bonis non to act in his place. The petition was granted, Andrew Willard being appointed. He qualified, J. H. Babcock and Samuel Hodgman becoming his bondsmen. The bond was in the usual form of executors' bonds under the laws of this state. Thereupon the trust fund was turned over to him, and his predecessor filed a proper receipt, showing such fact, in the county court. Thenceforward, Willard accounted for the trust fund to Mrs. Thomas till January 31, 1899, but did not at any time account to the court. He died insolvent September 16, 1899, having previously converted the whole of the trust fund to his own use. Prior to January 16, 1900, both of his bondsmen died. Such proceedings were duly had at the instance of the children of Mrs. Thomas, that on the day last named the Milwaukee Trust Company was duly appointed successor to Mr. Willard as administrator de bonis non with the will annexed, of Josiah Woodward, and also trustee to receive the trust fund and execute the trust in regard thereto; and at the same time the company was duly authorized to proceed against the estates of Willard and his bondsmen to recover such fund. Thereafter proceedings were duly had in the matter of the estate of Josiah Woodward for the settlement of the account of Willard, administrator de bonis non, resulting in the entry of a judgment to the effect that there was in his hands at the time of his death, belonging to the trust fund, $2,470.98, and that his estate was liable therefor. Such liability was thereupon duly transferred, by the judgment of the court, to the Milwaukee Trust Company as trustee. A claim for the amount thereof was thereafter duly allowed against the estate of Willard, deceased, and $851.48 collected thereon. Proceedings were duly taken in the settlement of the estate of J. H. Babcock, deceased, for the enforcement of the liability resting upon the deceased as bondsman at the time of his death, resulting in a judgment against him for the amount of the trust fund, less the amount collected from the Willard estate as aforesaid. An appeal was taken from such judgment to the circuit court for Dodge county, and on the trial in such court it was reversed and judgment was rendered dismissing the claim with costs, from which judgment this appeal was taken.Edwin S. Mack, for appellant.

M. E. Burke, for respondent.

MARSHALL, J. (after stating the facts).

The trial court seems to have decided this case wholly upon the theory that it was competent in this action to review the proceedings of the county court of Dodge county, appointing Willard administrator de bonis non with the will annexed, of the estate of Josiah Woodward, and to declare the same void. The court seems to have exercised that supposed jurisdiction, to have declared such appointment absolutely void, and thereby reached the conclusion that no liability existed against his estate as administrator de bonis non, consequently none against the estates of his deceased bondsmen. After reciting the facts leading up to and inclusive of Willard's appointment, the learned circuit judge, in the opinion filed, on which the findings and conclusions, upon which the judgment is based, were made, used this language:

“There was no authority of law, upon such a state of affairs, for the appointment of an administrator de bonis non; and that the sureties signing the bond of Andrew Willard as administrator de bonis non only were liable for the legal effect of the bond, which was, that such administrator de bonis non should legally administer such estate as legally came into his hands as such administrator.”

We must assume that the language, “there was no authority of law,” was used by the learned judge upon the theory that the entry of the order settling...