Bloor v. Smith

• Court: Wisconsin Supreme Court
• Writing for the Court: DODGE
• Citation: Bloor v. Smith, 112 Wis. 340, 87 N.W. 870 (Wis. 1901)
• Decision Date: 05 November 1901
• Parties: BLOOR ET AL. v. SMITH ET AL.

112 Wis. 340

87 N.W. 870

BLOOR ET AL.

v.SMITH ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1901.

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

Suit by Fremont Bloor and another, as executors of the estate of John L. Mann, deceased, against Regina Smith, as testamentary trustee of John T. Smith, deceased, and others, to foreclose a mortgage. From an order confirming the sale, and an order denying a motion to vacate the judgment, defendant Emma M. Smith appeals. Reversed.

On January 3, 1900, the plaintiffs recovered a judgment of foreclosure and sale against the appellant, impleaded with her minor brother, John T. Smith, Jr., and her adult sister, Regina Smith, as testamentary trustee and personally, which judgment was based upon a mortgage on certain real estate in the village of Fox Lake, in Dodge county, executed by Regina Smith as testamentary trustee under the will of John T. Smith, deceased, which the complaint alleged was so executed pursuant to a power contained in the will of said John T. Smith, deceased, and an order of the county court dated September 26, 1896, authorizing and empowering it. On March 18, 1901, the appellant made motion for the vacation of this judgment, and permission to defend upon a proposed answer attached to her application, and upon an affidavit seeking to excuse her default. By the answer she denied all power in Regina Smith to execute the mortgage sued on. She alleged that John T. Smith, who died in May, 1893, by his will first directed his executors, Regina Smith and Ira B. Smith, to pay all debts; and, second, devised and bequeathed all real and personal estate to his said executors, in trust, first, to pay to the daughter Regina Smith, as testamentary guardian of the two minor children, Emma Maud and John T. Smith, Jr., one-third of the income of all the estate for the support and education of said minors, such payments to commence immediately, and continue until the majority of the youngest child, John T. Smith, Jr., and at that time to deliver to each of three of his children, Regina, Emma Maud, and John T. Smith, Jr., one-fourth of all the estate, real and personal, with rights of survivorship. Said trustees were further directed to pay the income of the remaining one-fourth, after the majority of the minor children, to a fourth child, a married daughter. The executors were empowered as such to sell, dispose of, and convey all estate, and invest or reinvest the proceeds thereof, in their discretion; but by the sixth clause it was provided: “I further direct my said executors not to sell my present homestead situated in the village of Fox Lake, Wis., and all land premises owned by me adjoining the same, together with all [furnishings], but to keep the same intact during the minority of my said son as and for the home of my three children first hereinbefore mentioned, and for as much longer a period of time as my said daughter Regina may desire to occupy the same as her home;” and, “seventh, I hereby direct my said executors, upon the sale or disposal of my homestead, adjoining lands, dwelling house, and its contents, as aforesaid, to pay and deliver to my said children, Regina, Emma Maud, and John T., Jr., the proceeds thereof in equal shares.” The executors having entered upon their trust, and being unable to realize from assets, procured extensions of settling the estate from time to time, until in May, 1896, upon the ostensible authority of an order of the county court, they borrowed $1,100, with which they paid up the claims which had been allowed against the estate. In July, 1896, the executors filed a final account, which, after amendment and after notice, was duly allowed in September, 1896, and a final order entered assigning and distributing all of the property to Regina Smith as surviving testamentary trustee under said will, said Ira B. Smith having resigned; such assignment being subject to a charge for the $1,100 borrowed by the executors to pay debts and certain expenses of administration. On the same day Regina Smith, as testamentary trustee, filed petition representing the estate to be indebted for $1,100, borrowed as aforesaid; for $213.46, balance of fees due executors; for $100 of doctor's bill in last sickness of deceased; and for two months' allowance for support of the minors, $80,--total, $1,493.46; that, she being unable to sell other assets, the only available property out of which to realize money was the homestead. Thereupon, on the same day, and without the giving of any notice, the county court in form made an order authorizing said Regina Smith, as testamentary trustee, to borrow the sum of $1,500 for the purpose of paying the outstanding claims, and to execute to the lender a note, and also a mortgage, on specified premises, constituting the homestead of deceased, and appurtenant lots mentioned in the will. The answer asserts that no guardian ad litem for this appellant or her brother John T. Smith, Jr., who were then both minors, was appointed; but that one Lueck, who had been appointed guardian ad litem in the proceedings for the settlement of the estate, appeared and pretended to consent to said order, but without any authority. It is further alleged that Regina Smith unlawfully, and without authority, thereupon, on November 13, 1896, executed a note and mortgage for $1,500 to one John J. Roberts, and that thereafter, on March 19, 1896, without any further attempted authorization, she borrowed from these plaintiffs the sum of $1,500, and gave therefor a note payable five years after date, together with mortgage on said homestead, which are the note and mortgage sued on in this action. This answer was accompanied by an affidavit of the appellant showing that she was a minor at the time this action was commenced, October 30, 1899, and so continued until May 1, 1900; that, while the original summons was served upon her, she had no notice or knowledge of any attempt to appoint a guardian ad litem for her in that suit; that she was not at that time in said Dodge county, where notice for the appointment of such guardian was attempted to be served; that she had no knowledge or understanding of the proceedings in the settlement of the estate or of her rights, and that she did not learn of the entry of the judgment in this action until about the middle of November, 1900; that thereupon she immediately consulted attorneys, and advised with them as to the proper course, and through them, on the 2d day of January, 1900, prepared a petition to vacate the foreclosure judgment, and be permitted to defend, which motion was afterwards denied, without prejudice to renewal of the same. This application was met by extended affidavits from plaintiffs' attorneys as to matters appearing upon the records of the county court in the estate of John T. Smith, and by the ex-county judge presiding in that court during the settlement of that estate; also setting forth in full the will of said John T. Smith. So far as matters in such affidavits are material to the controversy, they will be mentioned in the opinion.

On February 9th the plaintiffs proceeded to advertise sale under the foreclosure judgment for the 29th day of March. On the 26th day of March, 1901, when appellant's motion was returnable, a postponement was had until the 8th of April, and at the time of the postponement the appellant requested a stay of sale proceedings. The court entered an order for such stay, conditioned upon the giving of a bond by appellant in the sum of $250, with which condition she failed to comply, and sale was accordingly made, on March 29, 1901, for the sum of $2,105; which, after the payment of certain delinquent and past-due taxes, left a deficiency upon the judgment of about $25. Motion to confirm this sale was made on the 8th day of April, 1901, and heard with the appellant's motion to vacate the judgment. The court entered two orders, the first denying appellant's motion, and the second confirming the sale under the judgment, from both of which the defendant Emma Maud Smith brings this appeal.

Bohmrich, Maher & Willrich, for appellant.

Sawyer & Sawyer, for respondents.

DODGE, J. (after stating the facts).

Appellant's application to set aside the judgment against her and to permit her to defend was addressed to the judicial discretion of the circuit court. To warrant its allowance, two principal questions were presented for consideration: First, whether the proposed answer set forth a valid and sufficient defense; second, whether the applicant's default was excused, and a proper equitable case for relief presented. The first of these was a strict question of law, and must be reviewed as such. To that end, turning to the proposed answer, we find a direct denial of any authority or power in Regina Smith to mortgage appellant's interest in the property involved. We also find a full statement of the only pretense of authority which existed, namely, the will of John T. Smith, creating Regina a testamentary trustee, conferring on her as such and as executrix power of sale over the testator's property generally, but prohibiting sale of the mortgaged premises during the minority of the youngest child, John T. Smith, Jr. No argument is necessary to establish that this instrument conferred no power to effectively mortgage this property. Authority to sell does not confer power to mortgage. Stoneware Co. v. McCrossen, 110 Wis. 316, 85 N. W. 1019. But even authority to sell the mortgaged premises is expressly denied by the instrument from which alone the trustee derived any power whatever. It is urged, however, that because the county court made an order directing the trustee to mortgage, such power existed. So far as such order might affect appellant's property, it is pretty clearly void; for no steps whatever were taken to notify her or to give her any day in court, not even to appoint a guardian ad litem to appear for her. The appearance, without...