Ford v. Ford

• Decision Date: 25 May 1894
• Citation: 59 N.W. 464,88 Wis. 122
• Parties: FORD v. FORD ET AL. (THREE CASES).
• Court: Wisconsin Supreme Court

88 Wis. 122

59 N.W. 464

FORD

v.FORD ET AL. (THREE CASES).

Supreme Court of Wisconsin.

May 25, 1894.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Proceedings by J. C. Ford, Margaret G. Ford, Marcus C. Ford, and others in the matter of the estate of Francis F. Ford, deceased. From the judgment, J. C. Ford, Margaret G. Ford, and Marcus C. Ford appeal. Affirmed.

These are three separate appeals from a judgment of the circuit court of Dane county, rendered in the course of the settlement of the estate of Francis F. Ford, deceased. Francis F. Ford died testate, January 26, 1886, leaving property in five states,--Wisconsin, Michigan, Iowa, Kansas, and Missouri. His will was duly admitted to probate in the county court of Dane county, June 17, 1886, and letters testamentary issued to J. C. Ford. The legatees therein named are his widow, Margaret G. Ford, his only son, Marcus C. Ford, and his three brothers, Edward I., Joseph C., and Henry T. Ford. The will is complicated in its provisions, difficult of construction, and difficult in execution. It was before this court in an action for construction thereof, which will be found reported in 70 Wis. 19, 33 N. W. 188, where the will is printed at length. Another appeal, taken in course of the settlement of the estate, will be found reported in 80 Wis. 565, 50 N. W. 409. The widow duly renounced under the will, and elected to take the provisions made for her by law. Litigation followed, commencing with a contest of the will by the widow, and litigation has also been carried on in four different states. Ancillary administration has also been taken out in the states of Michigan and Missouri, and that in Missouri was not terminated till after the expiration of six years after the issuance of the letters testamentary by the county court of Dane county. On the 18th day of August, 1892, the widow filed a petition in said county court, asking, among other things, for the removal of the executor and appointment of an administrator de bonis non on the ground that six years had elapsed since the granting of letters testamentary, and on the further ground that the executor had failed to properly discharge his duties under the will. The executor answered this petition, claiming that earlier settlement of the estate was impossible, and that he had faithfully discharged his duties. Upon the trial of this issue in the county court the petition for removal was dismissed, and judgment entered accordingly. From this judgment Margaret G. Ford and Marcus C. Ford appealed to the circuit court of Dane county. October 1, 1892, the executor filed in the Dane county court his final account and report, and his petition for its allowance. The widow and son thereafter filed a statement in the form of a complaint, making 15 specific objections to the account, to which complaint and objections the executor made answer. December 12, 1892, the executor filed a supplemental account, bringing his final account down to that date. The county court tried the issues arising upon the account and the objections, and filed its judgment thereon, February 14, 1893. The widow and son appealed from the whole of such judgment, and the executor appealed from the disallowance of certain items of the account. When the appeal came to the circuit court, the executor filed supplemental accounts, bringing down his final account to August 8, 1893. The appeal in the matter of the application for removal of the executor, and the various appeals from the judgment rendered upon the final account, were, by stipulation, all heard together in the circuit court, and the two proceedings were consolidated, and, after trial, findings and judgment were entered in the circuit court, October 30, 1893, as of August 28, 1893. From this judgment separate appeals were taken by the executor, by the widow, and by Marcus C. Ford, which were all argued together in this court. The executor, in his appeal, claims that the court erred--First, in disallowing $3,000 of the $6,000 claimed by him for extraordinary services; second, in disallowing two items of $200 and $97.50, respectively, paid by the executor to attorneys for legal services; third, in disallowing three items of $57.50, $20.50, and $28.55, respectively, being certain expenses of the executor to Kansas City and return, and an hotel bill at Madison; fourth, in directing the executor to pay to the counsel for the guardian ad litem of Marcus C. Ford the sum of $1,393.77; fifth, in adjudging that one-half of the net rentals of the estate be assigned to Marcus C. Ford. The widow, in her appeal, claims that the court erred--First, in allowing any extra compensation to the executor over and above the statutory per diem and percentages; second, in not removing the executor, and in holding that he had performed his duties with diligence; third, in first deducting all the expenses of administration from the amount of the personal estate, and assigning to the widow only one-third of the balance; fourth, in not allowing to her the expenses of litigation paid by her in other states as charges against the estate. The appeal of Marcus makes the same points.George W. Bird and I. C. Sloan, for plaintiff.

B. J. Stevens and A. L. Sanborn, for defendants.

WINSLOW, J. (after stating the facts).

1. As to the extra compensation allowed to the executor. The statute provides (Rev. St. § 3929) that, in addition to his per diem and commissions, an executor shall be allowed, as compensation, such further sums, “in cases of unusual difficulty or extraordinary services, as the county court shall judge reasonable.” It seems entirely clear to us that this has been a case of unusual difficulty. We entirely agree with the remarks of the county judge on this subject as follows: “If there ever was a case for extra compensation under our statute, this is one. No reported case that I have seen or been referred to compares with it. In this case there has been property found in four states, and looked after with diligence by the executor. It is claimed that there was and is also property in another state. This required and received investigation at the hands of the executor. He did not see fit to litigate for it. No party in interest, so far as it appears, offered to secure the estate against costs if he would do so. The rights of those entitled to that property have not been waived or lost by the action or nonaction of the executor, so far as appears. The will of the deceased made no reference to such property. The estate has been in constant litigation that has been persistent and spirited during the entire term of the executor's service. But few, if any, steps have been taken by the executor that have not been criticised and questioned. The suits for the construction of the will have been persistently followed, and fought in three states through the courts to the courts of last resort in each, with substantially the same result in all. I therefore find it a case for extra compensation. It is said that the charge for extra compensation was not itemized, and therefore should not be allowed. That the charge was not itemized is an objection to the claim, but full proof has been taken on the subject, and the charge itemized on the trial. I do not think the objection that the charge was not itemized a fatal one.” As to the point that the claim for extra compensation should have been itemized, doubtless such would be the better practice, although no statute seems to require it, and the rule on the subject only requires that it be “set up as a claim in the statement of account.” County Court Rules of 1879, No. 17, § 6. It seems clear that the...