Cleary v. Boyle

• Decision Date: 07 March 1939
• Citation: 230 Wis. 583,284 N.W. 506
• Parties: CLEARY et al. v. BOYLE.
• Court: Wisconsin Supreme Court

230 Wis. 583

284 N.W. 506

CLEARY et al.

v.BOYLE.

Supreme Court of Wisconsin.

March 7, 1939.

Appeal from a judgment of the Circuit Court for LaFayette County; S. E. Smalley, Judge.

Reversed.

Action commenced June 24, 1936, by the plaintiffs, Peter A. Cleary, S. N. Schafer and Herbert F. Ibach, Banking Commission of Wisconsin, hereafter called the commission, against the defendant, W. J. Boyle, as administrator de bonis non of the estate of George Crotty, deceased, to recover a 100% double liability assessment levied on certain shares of the stock of the Commercial State Bank of Argyle, which George Crotty, deceased, had owned in his lifetime. The amount sought to be recovered was $1,400, less a dividend of $769.47, which the commission had declared on the claim of the estate, but which it had retained and credited on its double liability claim.

The administrator asserted that the claim of the commission, at the time of the commencement of the action, was wholly barred and counterclaimed for the amount of the divided declared and retained by the commission. Trial was had to the court without a jury. The facts, after issue joined, were stipulated. They will be summarized in the opinion.

The trial court was of the view that since the commission had failed to file its claim against the estate of George Crotty, deceased, in the county court of LaFayette county within one year after its accrual, in pursuance of sec. 313.24, Stats.1929, it was barred. Findings of fact and conclusions of law were made and filed. The court ordered that judgment be entered dismissing the complaint and that the administrator recover the sum of $769.47, the amount of the dividend declared and retained by the commission. Judgment was accordingly entered on May 6, 1938. From that judgment, the plaintiffs appealed.

McDaniel, McDaniel & Reinoehl, of Darlington, for appellants.

Boyle & Boyle, of Darlington, for respondent.

NELSON, Justice.

So many of the stipulated facts as are material to the question requiring determination are as follows: George Crotty died on March 31, 1929. At the time of his death he was the owner of fourteen shares of stock in the Commercial State Bank of Argyle. In proceedings for the administration of the estate of said deceased, duly commenced and continued in the county court of LaFayette county, it was ordered that the time for filing claims against said deceased be limited to four months. Notice thereof was duly published and proof thereof filed. The time for filing claims expired on August 9, 1929, and the hearing on claims was ordered to be held on September 3, 1929. During the pendency of the administration proceedings and on August 5, 1929, the commission took over the bank for liquidation and on that day levied a 100% stock assessment against all of the stockholders of the bank. At the time the bank was closed, the administrator of said estate had on deposit in said bank the sum of $5,129.83, for which amount claim was duly made by him and allowed. The estate has never been closed. Its personal assets have not been distributed to the heirs nor has the real estate, of which the deceased died seized, been assigned. No claim was ever filed by the commission against the estate. Prior to the time that the action was commenced a 15% dividend had been declared in favor of the creditors of the bank. The dividend on the estate's claim amounted to $769.47. It was not paid to the administrator but was retained by the commission and credited on its claim for the double liability assessment levied on the stock belonging to the estate, leaving a balance asserted to be due the commission amounting to $630.53.

The principal question for determination is whether the statutes which were in effect in the year 1929 operate to bar the action against the administrator since no claim was filed by the commission against the estate within one year from the time of its accrual. Sec. 313.24, Stats.1929.

[1] The commission contends that when a claim for double liability accrues after a stockholder's death, it is not limited to the filing of a claim against the estate but may bring an action against the personal representative of the deceased and recover the amount of its claim if assets or funds remain in the hands of the personal representative sufficient to cover it, and if such assets or funds are insufficient, such an amount as equals the amount of the assets then in the hands of the personal representative. The precise question for decision has not heretofore been considered by this court. In Banking Commission v. Muzik, 216 Wis. 596, 257 N.W. 174, 175, it was held, that a claim for double liability which accrued during the lifetime of the stockholder is one which may be enforced by filing against his estate; that such a claim is subject to the non-claim statute and if not filed within the time limited for the filing of claims, is barred. The issue there was one of law which arose upon demurrer to the defendant's answer. The question which is now before us was not considerately discussed although it was incidently adverted to. The court said: “Justification for retaining the words ‘enforce a statutory liability’ in the statute [doubtless intending to say ‘enforce the liability of stockholders' found in sec. 287.17, Stats.1933] rests upon the consideration that there is a distinction between a claim to enforce a stockholder's liability that accrues before his death and one that accrues while the stock is held by his personalrepresentative. Action may be considered as properly tenable against the personal representative in the latter case, while it may not be in the former.”

In Schafer v. Sell, 220 Wis. 112, 264 N.W. 620, 621, an action in which it was sought to recover a double liability assessment from one alleged to be a stockholder, it was said:

“The statute imposes the superadded liability, first, upon stockholders, and, second, to the extent that they have available assets in their hands, upon personal representatives or trustees. ***

“The statute warrants the conclusion that a personal representative either does not need to be a stockholder in order to be subject to a liability to the extent of his available assets, or, which amounts to the same thing, that he is one by reason of his legal identification with deceased.”

In the Muzik case, supra, it does not appear from the opinion whether the estate was in process of probate with assets or funds still in the hands of the executor. Schafer v. Bellin Memorial Hospital, 219 Wis. 495, 264 N.W. 177, was an action against the residuary legatees of the deceased stockholder and Banking Comm. v. Best, 219 Wis. 526, 264 N.W. 176, was an action against the heirs of a deceased stockholder. In both of the last mentioned cases the estates had been distributed and the personal representatives discharged.

As before stated, the trial court was of the view that because the commission had failed to file its claim within one year from the time of the accrual, sec. 313.24, Stats.1929, the action could not be maintained...