George's Estate v. U.S. Fid. & Guar. Co. (In re George's Estate)

• Decision Date: 21 June 1937
• Citation: 225 Wis. 251,274 N.W. 294
• Court: Wisconsin Supreme Court
• Parties: In re GEORGE'S ESTATE. GEORGE'S ESTATE v. UNITED STATES FIDELITY & GUARANTY CO.

225 Wis. 251

274 N.W. 294

In re GEORGE'S ESTATE.GEORGE'S ESTATE

v.UNITED STATES FIDELITY & GUARANTY CO.

Supreme Court of Wisconsin.

June 21, 1937.

Appeal from a judgment of the County Court of Shawano County; F. A. Jaeckel, Judge.

On rehearing.-[By Editorial Staff].

Mandate in 270 N.W. 538 vacated, and judgment modified, and, as modified, affirmed.

Lines, Spooner & Quarles, of Milwaukee (Maxwell H. Herriott, of Milwaukee, and Allan V. Classon, of Green Bay, of counsel), for appellant.

Wallrich & Aschenbrener, of Shawano, for respondent.

Albert K. Stebbins and G. Kenneth Crowell, both of Milwaukee, amici curiae.

ROSENBERRY, Chief Justice.

Upon the original hearing the judgment of the trial court was affirmed. The United States Fidelity & Guaranty Company, hereafter referred to as the Guaranty Company, moved for a rehearing on the ground that the court had no jurisdiction of the subject-matter of an action upon the bond of a testamentary trustee. The motion for rehearing was granted and for the purpose of re-examining the nature and extent of the jurisdiction of the county court, the court directed briefs upon the following question:

“What jurisdiction is conferred upon the county court by the following clause of section 253.03, Wis. Stats.:

“‘The jurisdiction of the county court shall extend *** to all matters relating to the settlement of the estate of such deceased persons ***'

“(a) Does it confer jurisdiction to enforce liability on the bond in this case?

“(b) Does it confer jurisdiction to bring any action at law if some part or interest of the estate being administered by the county court is involved?

“(c) When is the remedy afforded by the county court not as ‘adequate, complete and efficient’ as that afforded by the circuit court?”

Very helpful and exhaustive briefs were filed in response to these questions. The facts are stated in the original opinion to which reference is made.

Judgment having been rendered against the Guaranty Company upon the bond, it is the contention of the Guaranty Company on the rehearing that the county court had no jurisdiction of the subject-matter of an action on the bond of the testamentary trustee.

A determination of the question presented requires a consideration of the limits of the jurisdiction of county courts. In this determination a consideration of the historical development of the court is helpful.

It appears that in 1839 there was established in the territory of Wisconsin courts of probate by act of the Legislative Assembly for the territory. The territorial court had jurisdiction to probate wills, grant letters of administration, appoint guardians, examine and allow accounts of executors, administrators, and guardians “and shall have cognizance of all such other matters and things as the laws of this territory do or may direct.” See Territorial Stats. 1839, p. 296, § 2. See, also, Laws of Territory of Michigan 1833, p. 297.

Article 7, section 2 of the Wisconsin Constitution provides: “The judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate, and in justices of the peace.”

Article 7, section 14, after providing for the election of a judge of probate, provides: “Provided, however, that the legislature shall have power to abolish the office of judge of probate in any county, and to confer probate powers upon such inferior courts as may be established in said county.”

The first Legislature enacted chapter 85, R.S.1849, establishing courts of probate. The powers of this court were defined in sections 5 to 8 of that act. The powers conferred were substantially those conferred upon the territorial court.

By chapter 86, section 2, R.S.1849, an inferior court to be known as the county court was created. The county court so created was vested with civil jurisdiction. By sections 3 and 4 of chapter 86, the duties of a judge of probate were transferred to the county courts as of January 1, 1850. By that act it was provided:

“Sec. 3. Such court [the county court] shall have the powers and jurisdiction now by law conferred on judges of probate, and shall perform all of the duties of judges of probate, in the manner provided by law,” etc.

Section 4 provided: “*** and the said judges of the county court, from and after that day, shall be invested with full and exclusive probate powers.”

Thus it appears that the county court at the time of its origin had two kinds of jurisdiction: Jurisdiction in civil matters and in probate matters. In considering the early cases this distinction must be borne in mind.¹

In the revision of 1858, the provisions of chapter 85, R.S.1849, appear as the first part of chapter 117 under the title “County courts.” Chapter 86, R.S.1849, became the last part of chapter 117 under the subtitle “Of county courts having civil jurisdiction.” However, the county courts with civil jurisdiction were confined to the counties of Milwaukee, La Crosse, St. Croix, Douglas, and La Pointe. In the revision of 1878, the statutory provisions relating to the probate powers of the county court were set out in chapter 114 entitled “Of county courts.” Chapter 115, entitled “Other courts of record” related to the civil jurisdiction of some of the county courts. This legislative treatment of the county court as a court of probate (chapter 114) and as an inferior court (chapter 115) reappeared in the Wisconsin Stats. for 1889 and in the original revision of 1898. See revisor's notes chapter 115. Chapter 114 of the statutes of 1898 is now chapter 253 of the Wis. Stats. for 1935. Chapter 115, R.S.1898, now appears as part of the “Table of all special private and local laws” etc. in the 1930 annotations and the appendices under the title “County courts.”

Until 1919 all appeals from the county court is probate were taken to the circuit court, where a trial de novo with a jury was available in proper cases. In 1919, appeals were authorized to be taken directly from the county court to the Supreme Court in counties having a population of over 15,000. Provision was made for the summoning of a jury in the county court for the trial of those cases in which the parties would have been entitled to a jury trial upon appeal to the circuit court. Either party in such a case, however, may demand the removal of the controversy to the circuit court. See State ex rel. Peterson v. Circuit Court (1922) 177 Wis. 548, 188 N.W. 645,Will of Weidman (1926) 189 Wis. 318, 207 N.W. 950.

Although the probate courts derive historically from the ecclesiastical courts of England, their jurisdiction is different and wider, our county courts having jurisdiction in matters in probate formerly exercised by courts of chancery and common law.

[1] With respect to matters in probate, the county court has plenary power in law and equity. State ex rel. Peterson v. Circuit Court, supra, Shupe v. Jenks (1928) 195 Wis. 334, 218 N.W. 375,Wisdom v. Wisdom (1914) 155 Wis. 434, 145 N.W. 126,Meyer v. Garthwaite (1896) 92 Wis. 571, 66 N.W. 704, 706.

[2] It has been held that the county court has jurisdiction over a testamentary trust. Carpenter v. U. S. Fidelity & Guaranty Co. (1904) 123 Wis. 209, 101 N.W. 404. However, it is only a trust created by will which vests in the county court any jurisdiction in probate over the trust or the trustee. Newcomb v. Ingram (1933) 211 Wis. 88, 243 N.W. 209, 248 N.W. 171.

In the Estate of Sipchen (1923) 180 Wis. 504, 193 N.W. 385, 387, the court said: “The court's jurisdiction of the subject-matter is designed primarily for two purposes: first, to enable creditors of the deceased to present their claims for adjudication, so as to enable them to participate in the distribution of the assets; and, second, to distribute the remainder of the property in accordance with the provisions of the last will and testament.”

[3] County courts have no jurisdiction in probate over actions for the recovery from third parties of assets or moneys belonging to or alleged to be due to the estate except by way of set-off or counterclaim (section 313.05) Estate of Kallenbach (1924) 184 Wis. 171, 199 N.W. 152, 153, where the court said: “The county court obtained jurisdiction to enforce claims against debtors to the estate by reason of the statutes referred to, and it would seem clear that, unless a debtor to an estate filed a claim against the estate, the county court would have no jurisdiction to proceed against the debtor in that court. It could authorize the administrator to bring an action against the debtor in a court of competent jurisdiction.”

In this connection it should be noted that “claims against the estate” include claims against the decedent as well as claims against the estate arising subsequent to the death of the decedent or incidental to administration and also claims against the estate for legacies or distributive shares of intestate estates. See Estate of Kelly (1924) 183 Wis. 485, 198 N.W. 280;Dampier v. St. Paul Trust Co. (1891) 46 Minn. 526, 49 N.W. 286. In Payne v. Meisser (1922) 176 Wis. 432, 187 N.W. 194, it was held that claims which had to be filed to escape the bar of nonclaim were limited to those arising ex contractu. See, also, In re Brust's Estate and Knutsen v. Krook (1910) 111 Minn. 352, 127 N.W. 11, 20 Ann.Cas. 852.

It was also held that the word “claim” did not include purely tort actions which should be prosecuted to judgment either in the circuit court or some other court of competent jurisdiction. Having under consideration the statute authorizing a discovery proceeding in the county court, this court said: “But, if property is discovered, there is no remedy to enforce its delivery or restoration to the estate. Saddington's Estate v. Hewitt [1887] 70 Wis. 240, 35 N.W. 552. After its discovery another action must be brought for its recovery, in a court of general jurisdiction, either at law or in equity, as the exigency of the case may require.” Meyer v. Garthwaite, supra...