Curtis v. Gillie

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtFRITZ
Citation300 N.W. 911,239 Wis. 207
Decision Date02 December 1941
PartiesCURTIS v. GILLIE et al.

239 Wis. 207
300 N.W. 911

CURTIS
v.
GILLIE et al.

Supreme Court of Wisconsin.

Dec. 2, 1941.


Appeal from a judgment of the Circuit Court for Lincoln County; George J. Leicht, Judge.

Affirmed.

Action brought by George G. Curtis, administrator de bonis non of the estate of Katherine Rooney, deceased, against Laura Gillie and Bradley Bank to recover rent for deceased's homestead, which accrued after her death. Defendants filed answers in which each prayed for the dismissal of the complaint; and Laura Gillie filed also a counterclaim to recover rent collected by plaintiff's predecessor, as administrator, and turned over to plaintiff. Upon findings and conclusions of law made by the court after a trial on the merits, judgment was entered dismissing the complaint against the defendants and awarding recovery on the defendant Gillie's counterclaim. Plaintiff appealed from the judgment.

E. C. Smith, of Tomahawk, for appellant.

Frank E. Hebert, of Tomahawk, and Fisher, Cashin & Reinholdt, of Stevens Point, for respondents.


FRITZ, Justice.

Plaintiff is the administrator de bonis non of the estate of Katherine Rooney, who died intestate on December 26, 1932, survived by her adult son, Charles Rooney, who was her sole heir. Her estate consisted only of her homestead, valued at $1,800, and personal property, valued at $150.10. The homestead was subject to mortgages, liens and taxes aggregating $2,700; and as the expenses of her last sickness and funeral were $325, her personal property was insufficient to pay the expenses of her last sickness and funeral and the costs of administration. In March, 1933, Edgar Welfley was appointed administrator of the estate, and he took possession of the homestead and rented it to the defendant, Laura Gillie, at $35 per month. Up to May, 1934, he had collected $385 as rent, and also $32.80 as insurance money on a windstorm loss. On January 6, 1933, Charles Rooney died. His will devised and bequeathed his entire estate to Mrs. Dan Tierney, who conveyed the Katherine Rooney homestead to Laura Gillie on May 8, 1934. Thereafter she paid $35 per month to the defendant, Bradley Bank, to apply on the purchase price of mortgages which it held on the homestead; and Welfley, as administrator, consented to her making such payments for that purpose. Upon the removal of Welfley as administrator in August, 1939, George G. Curtis was appointed his successor, and the county court ordered Welfley to turn over to Curtis

[300 N.W. 912]

$91.59, which was the net balance of the rents collected by Welfley after deducting expenditures. On February 17, 1940, Mrs. Dan Tierney assigned to Laura Gillie the claim for all rents for the homestead since the date of Katherine Rooney's death.

The trial court concluded that the homestead was not subject to Katherine Rooney's debts and liabilities; that therefore, under sec. 312.04, Stats., the administrator was not entitled to the possession or rents of the homestead, and his complaint to recover such rents must be dismissed; that the rents collected by Welfley, as administrator, from Laura Gillie were the property of Mrs. Dan Tierney, and the administrator was liable to her for such rents; and that as Laura...

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