Borchert v. Borchert

• Decision Date: 24 September 1907
• Citation: 113 N.W. 35,132 Wis. 593
• Parties: BORCHERT v. BORCHERT ET UX.
• Court: Wisconsin Supreme Court

132 Wis. 593

113 N.W. 35

BORCHERT

v.BORCHERT ET UX.

Supreme Court of Wisconsin.

Sept. 24, 1907.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by Louis W. Borchert, as special administrator of the estate of Wilhelmine Borchert, deceased, against Fred Borchert and another. From an order overruling defendants' demurrer to the complaint, they appeal. Affirmed.

Action for rescission and accounting.

As alleged in the complaint, Wilhelmine Borchert, an aged lady so weak, mentally and physically, as to be incapable of conducting any business of her own free will and by the exercise of judgment, residing with her husband, an aged man likewise incompetent--being the owner and in possession of real and personal property of about the value of $2,000, was unduly influenced and fraudulently persuaded by defendants to convert the realty into money and to convey all the property to them in consideration of their agreeing to support the old people, furnish them proper care in sickness, look after their comforts during their natural lives and treat them as children ought to treat their parents. A written agreement was made covering the subject. The old people died soon after the transaction. Defendants knew when it occurred that they would not be likely to survive but a short time. There was no necessity for making the agreement or using the property as was done, as the old people were being cared for gratuitously and properly at the home of the plaintiff. They left as their heirs sons and daughters as follows: William Borchert, Albert Borchert, August Borchert, Lena Koch, Amelia Kauffmann and defendant Fred Borchert. Before the transaction complained of occurred Wilhelmine Borchert was declared to be insane by her physician and treatment at the asylum for the insane was by him advised. When in her normal condition she affectionately and equally regarded all her children, was disposed to treat them alike in the disposition of her property, and she would have done so had she not acted under the influence of the defendants. She and her husband being controlled by the will of defendants left plaintiff's home and entered that of the defendants to be taken care of under the agreement aforesaid and were kept, but not properly, till they died. The property acquired by defendants, as stated, was turned into money by them prior to the commencement of the action. They threatened to place the same beyond the reach of judicial proceedings. Their purpose in obtaining the property as they did was to secure the benefit thereof substantially without rendering any just or legal equivalent therefor and contrary to the intelligent wish of the owner. After such owner's death plaintiff was appointed special administrator of her estate. He duly qualified as such administrator and was thereafter in due form authorized to commence this action. All the matters stated were in appropriate detail set forth in the complaint. Defendants demurred thereto for insufficiency. This appeal is from the order overruling such demurrer.Houghton & Neelen, for appellants.

Rubin & Zabel, for respondent.

MARSHALL, J. (after stating the facts as above).

The question presented for decision is this: If a person under contract, in form, with another obtains such other's personal property of considerable value and converts the same into money, and in that form retains the same, threatening, however, to place it beyond the reach of judicial remedies and such other by reason of insanity or other cause is wholly incompetent to enter into the transaction and dies without regaining capacity to assert and vindicate his rights and in the meantime such person renders some service and incurs some expense for such person, but in the aggregate not sufficient to constitute any adequate compensation for the property, does a right of action accrue to such other for a rescission of such contract and an accounting for and restitution of the property in its converted form, or if that cannot be had for its equivalent in money, which survives to his personal representative?

The real purpose of the action seems to have been misconceived by the learned counsel for appellant, resulting in a contention before this court that the complaint is insufficient under section 3832, St. 1898, providing that an administrator may recover property transferred by his intestate in fraud of creditors because of want of any allegation in the complaint of there being any creditors affected by the fraud (Ecklor, Adm'r, v. Wolcott, 115 Wis. 19, 90 N. W. 1081) being relied on. The statute, as will be noted, only contemplates the redress of wrongs to creditors by debtors after the decease of the latter. The wrong complained of here is one not committed by a debtor subsequently deceased, but one committed by a person still in esse against a person deceased and to the prejudice of his heirs.

Nothing further need to be said on this branch of the case if it were not for Ecklor, Adm'r, v. Wolcott, supra, where it was substantially held that an administrator cannot by action legitimately redress a wrong to the deceased in respect to property fraudulently obtained from the latter. It seems the distinction was overlooked between a mere personal claim, as one for damages, not aimed at a recovery of property in specie or the avails thereof,--a claim remediable by an action ex delicto, and one of the other character. So far as that case is out of harmony with the decision now made it must be regarded as overruled.

The next suggestion of counsel for appellant is predicated on a misconception. It is said that the action is one to recover damages for a fraud and that a right in that regard is not assignable and, hence, does not survive upon the...