Coolidge v. Rueth

• Decision Date: 09 November 1932
• Citation: 245 N.W. 186,209 Wis. 458
• Parties: COOLIDGE ET AL. v. RUETH ET AL.
• Court: Wisconsin Supreme Court

209 Wis. 458

245 N.W. 186

COOLIDGE ET AL.

v.RUETH ET AL.

Supreme Court of Wisconsin.

Nov. 9, 1932.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by Walter W. Coolidge and others against P. A. Rueth and others. From an adverse judgment, defendants appeal.--[By Editorial Staff.]

Affirmed.

Action on bond of administrator. By order of the county court for Dane county, entered September 19, 1927, the court directed letters of administration to be granted Rupert Batz, as administrator of the estate of Nellie Jane Coolidge, who died intestate December 24, 1926, upon the giving and approval of a bond for $5,000. Pursuant to this order, a bond was given dated September 29, 1927, and on the 13th day of October, 1927, letters of administration were duly issued. At the June term, and on June 10, 1929, final judgment of distribution was entered, and the final account of the administrator approved. By this final judgment, it was determined that the residue in the hands of the administrator for distribution amounted to $3,047.65, which was assigned as follows: One-fifth thereof to George B. Coolidge, one-fifth thereof to Walter W. Coolidge, one-fifth thereof to Etta M. Maynard, one-fifth thereof to the heirs of Frank W. Coolidge, a deceased brother of Nellie Jane Coolidge, and one-fifth thereof to the heirs of Warren T. Coolidge, a deceased brother of Nellie Jane Coolidge.

A dispute having arisen between Walter W. Coolidge, Etta M. Maynard, Margaret E. Coolidge, and Medora Coolidge with respect to the payment of the shares due, this action was begun on the 26th day of August, 1930, by the plaintiffs against the defendants, P. A. Rueth and F. A. Stegerwald, sureties upon the administrator's bond. There was a trial before the court, and the court found that the plaintiff Etta M. Maynard was entitled to judgment for $702.36; that the heirs of Walter W. Coolidge were entitled to judgment in the sum of $702.36; that Margaret Coolidge was entitled to judgment in the sum of $702.36; and that Medora Coolidge was entitled to judgment in the sum of $162.78, this being the amount out of the distributive shares unpaid with interest.

From the judgment entered accordingly on March 19, 1932, the defendants appeal.

Hill, Beckwith & Harrington, of Madison, for appellants.

Riley & Ohm and Robert N. Nelson, all of Madison, for respondents.

ROSENBERRY, C. J.

The first contention made by the defendants is that the opinion of the trial court and not the formal findings of fact reflects the true findings of fact. This contention, although it seems to be urged in perfect good faith, is in view of the record in this case a surprising one.

Section 270.33, Stats., requires the court upon the trial of a question of fact to give its decision in writing, in which the court shall state separately (a) the facts found; (b) the conclusions of law thereon. Subdivision (2) of the section provides that the decision shall be prepared either from the court's minutes or from the findings submitted by the parties or both.

In this case the court filed a decision. At the close, the court made the following direction: “Let findings be prepared accordingly by counsel for the plaintiffs.” Findings were so prepared and submitted to counsel for the defendant. To the proposed findings counsel for the defendant made written objection. The fifth objection was: “Object to the following language contained in folio 19: ‘Said administrator failed to exercise that good faith and common prudence which the law requires,’ for the reason that the evidence wholly fails to reveal any mala fides or culpable negligence of the said administrator.”

After hearing, counsel for defendants signed the following stipulation: “It is conceded that the annexed findings and judgment conform to the directions of the Court made on the hearing of defendant's objections to the original draft of findings and judgment.”

In their brief on appeal counsel say: “We insist on this appeal that there is no competent finding of mala fides concerning the conduct of the administrator, since the decision rendered by the court is barren of any such finding either by direction or implication. * * *

“We do not inject this discussion into this case without reason, for we feel that the Supreme Court should know how these findings characterizing Batz's discharge of his duties as lacking good faith happen to be in the record.”

[1][2] The stipulation made by counsel for defendants indicates that the findings are in the record because they were directed by the court to be there. In the absence of such a stipulation, findings of fact required to be filed pursuant to the provisions of section 270.33 control over statements made in the opinion of the court in case of conflict. Zimmerman v. Treleven, 192 Wis. 214, 212 N. W. 266;Adams v. Adams, 178 Wis. 522, 190 N. W. 359;Boehm v. Wermuth, 194 Wis. 82, 215 N. W. 818. Opinions filed by a trial court are very helpful in the consideration of questions subsequently raised in the case, and are required by rule 1 of the rules of practice of this court to be made a part of every record and transcript. It has always been held that, in case of conflict between the opinion and the findings made pursuant to section 270.33, the findings must control. The rights of the defendants in this case seem to have been guarded most scrupulously. Proposed findings of fact and conclusions of law were submitted to counsel for defendant, and counsel for defendant were given a hearing. This practice is in conformity with the suggestions of this court and in accordance with the practice indicated in section 270.33. This is not a case where the court has merely announced that it finds for the plaintiff and directs findings to be prepared. The proposed findings are charted or indicated in the opinion of the trial court, and, while it is true that in the opinion no mention is made of bad faith, that subject was brought to the direct attention of the court by the objections filed by the defendants' attorneys. It is not there as a result of inadvertence on the part of the trial court. In view of the decisions and the procedure followed in this case, the attack upon the findings is not warranted.

II. The plaintiffs raise a fundamental question which requires careful consideration. The administrator was appointed and his bond approved October 13, 1927; judgment assigning the estate is dated June 10, 1929, or about one year and seven months after the appointment of the administrator. The bank closed on July 3, 1929.

Chapter 311 entitled Letters of Administration and Administrators, section 311.05(1), provides: “Every administrator before he entersupon the execution of his trust and before letters of administration shall be granted to him, shall give a bond to the judge of the county court, with one or more sureties, as the court shall approve, with substantially the same conditions as are required of executors by section 310.14, with such variations only as may be necessary to make it applicable to the case of an administrator. * *”

Section 310.14 provides that every executor shall give a bond conditioned as follows: (a) To make and return an inventory; (b) to administer according to law all the goods and chattels of the testator; (c) to render a just and true account of his administration to the county court within one year; (d) to perform all orders and judgments of the county court.

Section 313.13 provides:

“Within sixty days after the expiration of the time limited for creditors to present their claims every executor or administrator shall render an account of his administration to the county court, and such court shall thereupon direct the executor or administrator to proceed forthwith to the payment of the debts and to a final settlement of the estate in the manner prescribed by law unless it shall satisfactorily appear to the court:

(1) That the personal assets in the hands of the executor or administrator are insufficient [etc.];

(2) That an appeal has been taken [etc.];

(3) That collectible debts due the estate have not been collected;

(4) That a contingent claim has been allowed against the estate of the deceased [etc.];

(5) That some other good and sufficient cause for delay exists.”

Section 313.14(1) provides: “Whenever it shall satisfactorily appear to the county court that any one or more of the causes for delay mentioned in section 313.13 exists such court shall, by order, fix a time within which the executor or administrator shall pay the debts and legacies and make a final settlement of the estate and of his account as executor or administrator; but such time shall in no case exceed twelve months, except when granted upon the petition of the executor or administrator, under oath, setting forth the assets remaining in his possession belonging to the estate of the deceased, the debts and legacies that remain unpaid, the reasons why the delay in the settlement of the estate prayed for is necessary, and what additional time is deemed requisite for a full settlement of such estate, and upon notice to all parties interested of the time and place of hearing such petition given by publication for three successive weeks before the day of hearing in a newspaper as provided in section 324.20, or in such other manner as the court may direct.”

On behalf of the plaintiffs, it is argued that the failure to account for and distribute the estate within one year, no petition for extension of time for cause having been filed or heard, is a breach of the administrator's bond, and that any loss occasioned thereby is a liability of the administrator for which his bondsmen are responsible.

In Shupe v. Jenks, 195 Wis. 334, 218 N. W. 375, 377, which was a suit upon an administrator's bond, the court said: “In the ordinary course of events, an estate like the instant one could have been liquidated and settled before the expiration of one year. ...