Eannelli's Estate, In re

• Citation: 80 N.W.2d 240,274 Wis. 193
• Parties: In re ESTATE of Anna C. EANNELLI, Deceased. Angeline VENCI, Adm'x, etc., Appellant, v. Paul EANNELLI, Adm'r, etc., et al., Respondents.
• Decision Date: 04 December 1956
• Court: United States State Supreme Court of Wisconsin

Page 240

80 N.W.2d 240

274 Wis. 193

In re ESTATE of Anna C. EANNELLI, Deceased.

Angeline VENCI, Adm'x, etc., Appellant, v. Paul EANNELLI, Adm'r, etc., et al., Respondents.

Supreme Court of Wisconsin.

Dec. 4, 1956.

Vaughn S. Conway, Baraboo, for appellant.

Chester J. Niebler, Milwaukee, M. J. Paul, Berlin, Marshall J. Herro, Milwaukee, of counsel, for respondent.

CURRIE, Justice.

The two issues on this appeal are:

(1) Did the county court have the power to revoke the letters of administration originally issued to Angeline Venci; and

(2) Is the said administratrix entitled to a charge against the assets of the estate for any of the disbursements made and the expenses incurred by her as listed in the final account?

Sec. 311.12, Stats., appears to be the only statute dealing with the subject of revocation of letters of administration. Such statute authorizes the county court to revoke letters of administration in a situation where a will of the deceased is duly proved and allowed by the court. The attorney for the appellant administratrix contends that the county court has no power to revoke letters of administration except for the single ground stated in such statute. We cannot agree. This court in the early case of In re Fischer, 1862, 15 Wis. 511, 521, declared, 'The county court sitting as a court of probate, may at any time in the furtherance of justice, revoke an order which has been irregularly made or procured by fraud'. See, also, Brunson v. Burnett, 1849, 1 Chand. 136; 2 Pin. 185, 190, holding that the authority of the county court to revoke letters of administration is inherent to the general powers of the court, and 21 Am.Jur., Executors and Administrators, pp. 455, 456, sec. 144.

The words 'irregularly made' contained in the above quotation from In re Fischer, supra, undoubtedly refer to jurisdictional rather than non-jurisdictional error. Except for the allegation in the original petition for administration that there had been simultaneous death of Anna, Massemino, Anthony, and George Eannelli, the county court had no jurisdiction to have issued letters of administration to Angeline Venci, administratrix, on July 21, 1951. Inasmuch as such deaths were not simultaneous because of Anthony having servived the other three, the petition had not been made by an heir or next of kin. It is, therefore, our considered opinion that the trial court had no discretion but to revoke such letters of administration previously issued to Angeline Venci.

However, such revocation of letters of administration does not determine the question of whether Angeline Venci is entitled to credit for any of the disbursements made and expenses incurred while administering the estate prior to such revocation. This is because of the provisions of sec. 311.14, Stats., which provide as follows:

'All acts of an executor or administrator as such, before the revocation of his letters testamentary or of administration, shall be as valid to all intents and purposes as if such executor or administrator had continued lawfully to execute the duties of his trust.'

An examination of Angeline Venci's final account, of the testimony taken, and of the exhibits offered to support the disbursements made and expenses incurred by her, for which she claims credit in her account, discloses that, outside of a disbursement in the sum of $2,564.78 for the accountants' audit of the books and records of the Granite Lumber Co., most of the other amounts claimed are for attorneys' fees and disbursements in conducting the litigation to determine which of the four members of the Eannelli family killed in the accident of June 12, 1951, had survived. Such litigation resulted in a determination that the son, Anthony Eannelli, was such survivor so that the net estates of both Anna and Massemino Eannelli will ultimately be distributed to Anthony's paternal grandparents, Donato and Mary Eannelli. Angeline Venci devoted her efforts in such litigation to an attempt to establish Anna C. Eannelli as the survivor so that Angeline Venci and her sisters and brothers, as the heirs and next of kin of Anna, would take all the net assets of the Anna C. and Massemino Eannelli estates. By seeking to charge the attorney fees and disbursements of her counsel in such litigation against the assets of the Anna C. Eannelli estate, Angeline Venci in effect is endeavoring to achieve such reimbursement at the expense of property equitably owned by Donato and Mary Eannelli. Such a result appears to us to be highly incongruous because it in effect would be requiring the successful litigants to pay the expenses of their defeated adversary.

Insofar as litigating heirship in the Anna C. Eannelli estate is concerned, Angeline Venci in her capacity as administratrix was in reality not an interested party but a mere stake holder. As administratrix charged with the duty of preserving and protecting the assets of the estate, she should not have expended the estate's funds in a fight between two sets of conflicting heirs to determine who should inherit the estate. There, therefore, was a manifest conflict in interest between the roles played by her as an heir interested in the outcome of the litigation and as administratrix.

In re Estate of Donges, 1899, 103 Wis. 497, 518, 79 N.W. 786, 793, this court stated that 'courts should be cautious in allowing for services ostensibly rendered to executors, but in spirit and effect rendered to one of the opposing interests, which should bear its own expenses'. See also In re Estate of Dennett, 1929, 200 Wis. 84, 227 N.W. 280.

The situation in the instant case is complicated by the fact that the litigation over the question, of which member of the four members of the family involved in the fatal accident survived, affected the determination of heirship in the Massemino Eannelli as well as the Anna C. Eannelli estates. If Anna were the last survivor, then her estate would have been entitled to receive the distribution of the net assets of the Massemino Eannelli estate. From this standpoint the administratrix of the Anna C. Eannelli estate did have an interest to protect. However, because the determination of heirship in both estates was consolidated for purposes of trial it is impossible to separate Angeline Venci's role as an individual, interested in the outcome of the heirship determination in the Anna C. Eannelli estate, from that of an administratrix seeking to have such estate established as the ultimate distributee of the Massemino Eannelli estate. Because of the obvious conflict of interest present, Angeline Venci should not have proceeded as administratrix to contract for legal services to conduct such litigation, and to incur the large expenditures for the disbursements of counsel incident to such litigation, without first having formally presented the matter to the county court and requested the court's instructions in the matter.

The decision in State ex rel. Peterson v. Circuit Court, 1922, 177 Wis. 548, 554, 188 N.W. 645, 647, makes it clear that in any case where a personal representative of an estate is presented with a situation, in which there is a reasonable doubt as to his right to take certain contemplated action, he should apply to the court for instructions. In the opinion in such case, the court stated:

'In administering the property of an intestate, an administrator's functions, like those of an executor, are in the nature of those of a trustee, and he has at all times the right, and in many instances it becomes his duty, to apply to the court for direction and guidance.'

An excellent statement of the law on this point is to be found in 1 Gary, Wisconsin Probate Law, 5th Ed., p. 267, sec. 284, as follows:

'An executor or administrator, being an officer of 'arm' of the court, has the right to apply to the court which appointed him for advice or authority when reasonably in doubt as to what course of action to pursue. In some instances, in fact, it is not only the right but also the duty of the representative to apply for direction and guidance, and it is very unwise to fail to do so if there is a chance of liability and doubt as to right or power to act as desired. Such applications may be, and usually are, made ex parte and without notice to those in interest. The ruling made on an ex parte application is not binding and conclusive upon those in interest and does not preclude subsequent attack upon an act of the executor or administrator in reliance upon the order of the court. As a general proposition, however, an executor or administrator acting according to directions of the court after duly presenting the facts, though without notice to others in interest, is protected against liability, unless the order was beyond the jurisdiction of the court.'

Angeline Venci's final account discloses payment to Attorney Vaughn Conway of $1,500 to apply on attorney fees and for $482.47 disbursements made by him, and $407.75 paid directly by the administratrix to one Elvira Whalen for reporting the original trial. In addition the account shows as unpaid a charge of $16,307.42 for attorney fees and disbursements to Conway, and $807.19 to Attorney William Belter for attorney fees and disbursements. At the hearing on the account, Conway gave the following breakdown of the $16,307.42 item:

                                             Services
                4 days in the supreme court at $150 per day                 $600.00
                13 1/2 days in the trial courts at $100 per day            1,350.00
                81 days of office

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