Gorny v. State (In re Bulewicz' Estate)

• Decision Date: 29 June 1933
• Citation: 249 N.W. 534,212 Wis. 426
• Parties: IN RE BULEWICZ' ESTATE. GORNY ET AL. v. STATE ET AL.
• Court: Wisconsin Supreme Court

212 Wis. 426

249 N.W. 534

IN RE BULEWICZ' ESTATE.^a1GORNY ET AL.

v.STATE ET AL.

Supreme Court of Wisconsin.

June 29, 1933.

Appeal from a judgment of the County Court of Milwaukee County; J. Allan Simpson, County Judge.

In the matter of the estate of Mary Bulewicz, deceased. Proceeding by Franz Gorny and others against the State and the Trustees of the Milwaukee County Orphans' Board to recover proceeds of escheated personal property. From a judgment dismissing petition of claimants, claimants appeal.--[By Editorial Staff.]

Affirmed.

Proceedings by alleged heirs for refund of money paid pursuant to the judgment of the county court to the Trustees of the Milwaukee County Orphans' Board as the proceeds of escheated personal property under chapter 471, Priv. & Loc. Laws 1871. From a judgment of dismissal, the petitioners appeal.George C. Brown, of Grand Rapids, Mich., for appellants.

James E. Finnegan, Atty. Gen., Joseph G. Hirschberg, Deputy Atty. Gen., and J. E. Messerschmidt, Frank W. Kuehl and Herbert H. Naujoks, Asst. Attys. Gen. (Mary Eschweiler, of Madison, of counsel), for the State.

Houghton, Neelen & Houghton, of Milwaukee (Louis A. Lecher and George D. Spohn, both of Milwaukee, of counsel), for respondent Trustees of Milwaukee County Orphans' Board.

Bottum, Hudnall, Lecher, McNamara & Michael, of Milwaukee, as amici curiæ.

FOWLER, Justice.

Chapter 120 of the Private & Local Laws of 1870, as amended by chapter 471, Priv. & Loc. Laws 1871, by its terms requires the county court to order the public administrator of Milwaukee county, appointed pursuant to said act, to pay to the trustees of the Milwaukee county orphans' board the avails of all personal estate left by residents of the county who die intestate and without known heirs, and further provides that, in case of such payment, the court shall order a refund by said trustees to heirs of the decedent who shall apply therefor within five years from the time of such payment and establish their heirship. Pursuant to these provisions, $20,909.89, the avails of personal property belonging at her death to Mary Bulewicz, was by the court ordered to be paid to said trustees “as escheated personal property,” and was so paid; and pursuant to said act certain persons claiming to be heirs of said decedent filed with the court on the day preceding the expiration of the five-year period their petition for refund of their share of the amount paid.

Section 318.01 (2) is as follows: “Escheats. In case there shall be no known heir or distributee the personal estate not disposed of by the will shall belong to the state; and all the personal estate of any deceased person, which shall not be claimed by the legatee, heir or distributee within three years after the death of the owner thereof, shall, in like manner, belong to the state, subject in both cases only to the debts, funeral charges and the expenses of administration, and shall be paid to the state treasurer and become a part of the school fund.”

Section 318.03 provides that money paid into the state treasury pursuant to section 318.01 (2) shall be refunded “to the proper owner, who had not before asserted claim thereto,” upon his establishing his right thereto upon application to the county court who made the order filed within five years from the time of the payment.

Section 311.17 provides that the state treasurer on receiving any money from a public administrator shall forthwith advertise the fact in a specified manner, and that the same will be paid to heirs not theretofore asserting claims thereto on proof of heirship on application made within five years. This statute by its express terms does not apply to Milwaukee county.

After the decision of this court in Payne v. Commissioners of Public Lands, 208 Wis. 142, 242 N. W. 553, which held unconstitutional the act under which the court herein ordered the payment to the trustees of the orphans' board, and more than five years after the payment pursuant to said order, certain other alleged heirs of Mary Bulewicz filed in the county court their petition for refund to them of their share of the money, claiming the act and the order of the court made pursuant thereto were void, and that they are entitled to the money in the hands of the board under the general statutory provisions last above stated. The county judge ordered that notice of this application be given to the Attorney General.

The two petitions came on for hearing together. The Attorney General appeared for the state and moved dismissal of both petitions on the grounds that the court was without jurisdiction to proceed upon the first petition because the Orphans' Board Act is void, and conferred no power upon the court to entertain proceedings for a refund, and without jurisdiction to proceed under the statutory provisions last stated because no money had been received by the state treasurer.

[1] That the statutes last stated conferred no power on the county court to act seems manifest because there has been no payment to the state treasurer. Under section 318.03, action by the state treasurer or a proceeding to require him to act does not lie until the state treasurer has received money subject to refund. Why section 311.17 is relied upon we are unable to perceive. As above stated, it does not apply to Milwaukee county by its express terms; and it provides only for proceedings directly before the state treasurer.

[2] It may be observed further that the county court of Milwaukee county is a court of limited jurisdiction. It has only such powers as the statutes of the state have conferred upon it. The statutes have not conferred upon it jurisdiction of actions or proceedings for the recovery of money, except as the Orphans' Board Act, if constitutional, has conferred such jurisdiction, or as some such proceeding may obtain in the ordinary course of the administration of estates. Although a court of general jurisdiction would have jurisdiction to entertain an action for the recovery of the money here involved, whether the parties invoking the jurisdiction are entitled to recover it or not, a point not before us and which we do not consider, such jurisdiction does not lie in the county court of Milwaukee county.

In this connection we venture to suggest that it is a serious question whether either heirs or the state have any right to recover moneys paid to the trustees of the orphans' board pursuant to the order of the county court, if the act pursuant to which the order was made is unconstitutional. We have held that recovery does not lie for inheritance taxes paid pursuant to an order made under an unconstitutional act; that the judgment of the court directing such payment is res judicata, although the act be void; and that taxpayers not appealing from the judgment are bound by the adjudication, in absence of legislative action granting the right. State ex rel. Straight v. Levitan, 197 Wis. 549, 222 N. W. 805;Beck v. State, 196 Wis. 242, 219 N. W. 203. It is true that neither the state nor the heirs had actual notice of the county court proceeding. But county court proceedings are in rem (Will of McNaughton [Frame v. Plumb]), 138 Wis. 179, 118 N. W. 997, 120 N. W. 288), and, if the prescribed notices by publication have been duly given, are not the judgments of such courts binding on all interested parties whether or not they appear therein or have personal notice thereof? State ex rel. Atkinson v. McDonald, 108 Wis. 8, 84 N. W. 171, 81 Am. St. Rep. 878,Appeal of Schaeffner, 41 Wis. 264. Or does action lie in a court of general jurisdiction to recover funds paid over to the orphans' board under the act upon the reason of cases allowing recovery from distributees where the estate of a living person has been administered on the understanding that he is dead, or legacies have been paid where there is a pretermitted child or contingent claims have become absolute after an estate has been distributed? Or do proceedings lie for administration de bonis non? We shall not venture to suggest the answer to any of these questions in this case.

As to the first petition, ...