Carpenter v. U.S. Fid. & Guar. Co.

• Decision Date: 15 November 1904
• Citation: 101 N.W. 404,123 Wis. 209
• Court: Wisconsin Supreme Court
• Parties: CARPENTER, JUDGE, v. UNITED STATES FIDELITY & GUARANTY CO. ET AL.

123 Wis. 209

101 N.W. 404

CARPENTER, JUDGE,

v.UNITED STATES FIDELITY & GUARANTY CO. ET AL.

Supreme Court of Wisconsin.

Nov. 15, 1904.

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

Action by Paul D. Carpenter, judge of the county court of Milwaukee county, against the United States Fidelity & Guaranty Company, impleaded, on an administrator's bond. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Action on an administrator's bond. The issues raised by the pleadings sufficiently appear by inference from the findings of fact, of which the following is a brief summary:

(1) November 25, 1897, Charles W. Stolla, residing in Milwaukee county, died testate. Such proceedings were duly taken that Arthur M. Kuehn March 8, 1898, was appointed administrator of his estate with the will annexed. He duly qualified as such administrator, entered upon his duties as such and continued in office until the findings herein were filed.

(2) The penal sum in said Kuehn's bond was $51,000, and the surety was the defendant, The United States Fidelity & Guaranty Company.

(3) It was provided in such bond, among other things, that if the said Kuehn performed all orders and judgments of said county court it should be void, and otherwise that it should remain in full force and virtue.

(4) February 9, 1903, the administrator rendered an account of his administration, showing receipt of $34,398.07, in money and personal property, disbursements of $26,338.60, and a balance on hand of $7,259.47, in money and a note for $400.

(5) B. K. Miller, George H. Noyes and George P. Miller, as firm of Miller, Noyes & Miller, were the administrator's attorneys until they filed their petition, hereafter mentioned. Otto J. Fiebing and Henry J. Killilea, as firm of Fiebing & Killilea, were likewise his attorneys until they filed their petition, hereafter referred to.

(6) Miller, Noyes & Miller after the filing of said account by petition informed the court that though by such account it appeared that they had received from the estate $4,000, as compensation for legal services, and $1,773.49, for disbursements, no such payment had been made, and requested payment of such sums out of the assets shown to be in the administrator's hands.

(7) Fiebing & Killilea by petition informed the court that, whereas by said account no credit was taken by the administrator for payments to them, they rendered services to him, which were beneficial to said estate, of the reasonable value of $250, for which they had not been paid. They further informed the court that the administrator was insolvent. They requested that the sum claimed by them might be ordered paid out of the assets of the estate.

(8) Upon due notice to all the parties interested as heirs the petitions were heard before the county judge. It was there made to appear that the facts stated therein were true; that the services rendered by the attorneys were reasonably worth the sums charged by them; that such services were actually rendered for the benefit of the estate; that $1,773.49, were actually disbursed for its benefit by Miller, Noyes & Miller; and that the administrator was insolvent and had appropriated to his own use all the personal property of the estate, except $70.59.

(9) Thereupon payment by the administrator out of money due from him to the estate was ordered of $5,773.49, to Miller, Noyes & Miller, and $250, to Fiebing & Killilea, and said sums were decreed to be liens upon the assets of the estate.

(10) Such proceedings were subsequently duly taken that the administrator's account was settled and a final order of distribution was entered in respect thereto. The sum of $14,778.69, was decreed to be due from the administrator, and he was ordered to pay therefrom the sums allowed to the attorneys as aforesaid, and the balance to the heirs entitled thereto, specifying the amount going to each.

(11) Such heirs consented to the entry of the order.

(12) It was not appealed from, or set aside or vacated.

(13) After the entry thereof due demand was made upon the administrator to comply therewith, but he refused to do so, except as to the payment of $70.59.

(14) Thereafter due demand was made upon the defendant surety to respond in the sum found due from the administrator, and it refused to do so.

(15) April 17, 1903, thereafter, said county court upon petition of one of such heirs authorized suit upon the aforesaid bond to recover the amount so found due from the administrator for the benefit of the parties entitled thereto.

(16) This action was commenced accordingly and thereafter the surety paid such parties, except said attorneys, Miller, Noyes & Miller and Fiebing & Killilea.

(17) There is due plaintiff from said administrator and said surety for the benefit of said attorneys the sums ordered paid to them, as aforesaid, with interest from April 15, 1903.

(18) The sums ordered paid measure the reasonable value to the estate of the service rendered thereto by the attorneys.

Thereon it was held that plaintiff was entitled to judgment for the sums so ordered paid to the attorneys, with interest, for their benefit, with costs and disbursements. Judgment was entered accordingly.

Exceptions were filed to the findings, which need not be stated in detail. The defendant surety company appealed.Bloodgood, Kemper & Bloodgood (Francis Bloodgood, of counsel), for appellant.

Miller, Noyes & Miller, for respondent.

MARSHALL, J. (after stating the facts).

The first question to be noticed is: Did the county court have jurisdiction to determine the amount justly allowable to the attorneys of the administrator out of the estate on account of legal services performed by them, to make the same a lien thereon and to order the lien to be extinguished by using funds for which the administrator was responsible?

True, as counsel for appellant contend, the legal title to the personal property of a deceased person is vested in his personal representative, and that expenses incurred by him in the performance of his duties are not necessarily a charge thereon, and are in all cases personal liabilities of such representative. Miller et al. v. Tracy, 86 Wis. 330, 56 N. W. 866. But it is not the law, as understood here, that the court appointing an administrator has no control over property in his hands during the course of administration, except to require the filing of an inventory, to adjudge upon claims of the deceased, to require the filing of the administrator's account, to order the payment of debts and adjudge the payment of legacies and distribute property according to the law of descent and heirship or the will, if there be one;--that there is no supervisory power over the estate during the period of administration. One should not be misled as to the jurisdiction of our county courts in the settlement of estates by authorities found elsewhere under a different system than ours.

While the legal title to personal property belonging to an estate upon the appointment of the administrator and his qualification, vests in him, he holds the same in trust and is accountable to the court appointing him after the manner of trustees generally. He is the “arm of the court,” so to speak, in the settlement of the estate, the same as a receiver is in an ordinary administration suit. The court has the amplest authority, within the limitations of the statute, to direct him, and to recognize equitable claims upon the funds in his hands, growing out of services performed in the conservation thereof, and to protect the possessor of such claims, if justice so requires, by making them liens upon such funds, after the...