Cook v. Cook (In re Schultz's Estate)

• Decision Date: 17 February 1948
• Citation: 30 N.W.2d 714,252 Wis. 126
• Parties: In re SCHULTZ'S ESTATE. COOK v. COOK.
• Court: Wisconsin Supreme Court

252 Wis. 126

30 N.W.2d 714

In re SCHULTZ'S ESTATE.COOK

v.COOK.

Supreme Court of Wisconsin.

Feb. 17, 1948.

Appeal from judgment of the County Court of Fond du Lac County; George Goggins, Judge.

Proceeding in the matter of the estate of Ottilie Saupe Schultz, deceased, wherein Dr. E. H. Cook filed a claim against the estate, to which Mamie, Cook, executrix of the estate, filed objections. From a judgment in favor of the claimant, the executrix appeals.-[By Editorial Staff.]

Judgment affirmed.

Dr. E. H. Cook, hereinafter referred to as the claimant, on the 28th day of November, 1944, filed a claim against the estate of Ottilie Schultz, to which the executrix filed objections. There was a trial before the court, the court found in favor of the claimant, and on April 26, 1946, the claim was allowed in the sum of $14,116.19, from which the executrix appeals to this court. The facts will be stated in the opinion.

John E. O'Brien, of Fond du Lac, for appellant.

Hooker & Wagner, of Waupun, and August Kading, of Juneau, for respondent.

ROSENBERRY, Chief Justice.

On June 19, 1933, the deceased Ottilie Schultz and her husband William C. Schultz, executed a promissory note to the claimant for the sum of $7,970.21, payable on demand after date with interest at the rate of six per cent. No part of the note has been paid. There is now due thereon the principal sum, together with interest at the rate of six per cent per annum from the date of the note to the 26th day of April, 1946, amounting to the sum of $6,145.98, in all the sum of $14,116.19 principal and interest.

Each of the signatures was preceded by the words ‘witness our hand and seal’ and each signature was followed by the word ‘seal’. No place of payment, performance or execution is indicated in said note. The note represented advances and interest theretofore made by the claimant to the makers of the note.

In June 1931 the payee left Wisconsin and established his residence at Ellerslie, Maryland, where he has since continuously resided. In 1932 and 1933 the claimant prepared a new note for the makers to sign and mailed the same to Wisconsin. Upon receipt thereof the makers signed and returned the note to the claimant at his home in Maryland. Upon the receipt of the new note the claimant marked the old note ‘Paid out by renewal.’ or a similar indication of payment and returned the old note to the makers in Wisconsin.

The note upon which claimant predicates his claim was prepared for signature by the claimant in Ellerslie, Maryland, and by him mailed to the makers at Watertown Wisconsin. Upon receipt of the same the makers signed it and returned it by mail to the payee who received it in Maryland, and upon receipt thereof the payee took the immediate older note, wrote thereon the words ‘Paid out by renewal’ and mailed the older note to the makers at Watertown, Wisconsin.

On the 4th day of June, 1941, the decedent, Ottilie Schultz, one of the makers of the note upon which the claim is based, executed a codicil to her will, which was received in evidence and which is in the following words: ‘As and for a codicil to my last will and testament I hereby authorize and direct my executor named therein as a first obligation of my estate to pay to Dr. E. H. Cook, of Ellerslie, Maryland, the note held by him, executed jointly by William C. Schultz, my late husband, and myself, now in the sum of about $11,000. In Witness Whereof I have hereunto set my hand and seal at the City of Lake Mills, this 4 day of June, 1941. Ottilie Schultz (seal).’

The codicil was properly witnessed and executed.

On the 5th day of June, 1941, the codicil was mailed by its maker to the claimant who received it in Maryland. That said codicil was accepted by the claimant and remained in his possession until it was offered as an exhibit upon the trial. Upon these facts the court concluded that the note in question is a sealed instrument, that it is a renewal contract and the place of the contract is the State of Maryland, that the place of performance is Wisconsin, that the cause of action upon said note accrued within the State of Wisconsin, that Sec. 330.16(2) of the Wisconsin Stats. does, and Sec. 330.18(2) does not apply. That the codicil of the will of Otillie Schultz, executed by her upon express written request of the claimant and delivered to him by the decedent and accepted and retained by the claimant, tolled the Statute of Limitations and revived the debt. Judgment was awarded accordingly. Additional facts with be stated in the course of the opinion.

On this appeal the appellant contends,

First: That the note was a Maryland contract; that the cause of action thereon accrued in Maryland and is barred by the Statute of Limitations, Wisconsin Stats. Sec. 330.18(2).

Second: That the codicil did not toll the Statute of Limitations and revived the debt.

Third: That by failing to file the note as a claim against the estate of William Schultz, one of the makers, the claimant released the deceased who was an accommodation signer without consideration.

Fourth: That the action is barred by laches of claimant.

We now consider the first contention of the appellant. It appears without dispute that prior to June 1931 the makers and payee of the note were all residents of Watertown, Wisconsin. The original debt was incurred in 1923. As already stated, in 1932 and 1933 the claimant prepared a new note for each of the years for the makers to sign, including the interest accrued, and mailed the same to Wisconsin for the signatures of Mr. and...