Israel v. Silsbee

• Decision Date: 13 March 1883
• Citation: 15 N.W. 144,57 Wis. 222
• Parties: ISRAEL v. SILSBEE.
• Court: Wisconsin Supreme Court

57 Wis. 222

15 N.W. 144

ISRAEL

v.SILSBEE.

Supreme Court of Wisconsin.

Filed March 13, 1883.

Appeal from circuit court, Dane county.

In 1851 Nicholas Smith died testate in the city of Madison, leaving surviving him his widow, who is the present appellant, and their six children, to whom he devised certain real estate in Madison, of which he died seized. Eliza Jane Smith was their oldest child, and at the time of her father's death was about 11 years of age. In 1858 Eliza Jane intermarried with one Benedict Israel. The plaintiff, Maximillian D. Israel, who was born in 1859, is their son, and the only issue of such marriage. In 1862 Mrs. Israel, with her son, joined Mr. Israel in California, (to which state he had preceded them,) and during the following year she died intestate. Maximillian has ever since resided in that state. At the decease of Mrs. Israel, her interest in her father's estate, which descended to her son, was seven fifty-fourths thereof. Of that interest one-ninth of her father's estate was devised to her by his will, and the remaining one fifty-fourth part thereof descended to her upon the death of one of her brothers, after he became 21 years of age, who died intestate, leaving no issue or widow. Under various proceedings in the county court all of the real estate devised by Nicholas Smith was sold, except lot 3, in block 103, in Madison, and on this lot Mrs. Silsbee erected three stores in 1856. These stores seem to have been paid for mainly out of the proceeds of sales of real estate and personal property, and the rents of such stores. In 1871 Mrs. Silsbee sold lot 3 for $12,000, and the whole consideration was paid to her--a portion at the time of the sale and the balance afterwards. She also received all of the rent for the stores until such sale. All of the surviving children of Nicholas Smith and herself had then become of age, and all of them, except her son Byron, joined with her in a conveyance of lot 3 to Byron, who thereupon conveyed the same to such purchaser. The respondent, Maximillian, was then a minor, and did not join in such conveyance.

For the purpose of realizing an unpaid balance of the purchase money, it became necessary that a conveyance of the interest of the respondent in the property should be obtained. On the basis of $12,000, that interest was of the value of $1,555.55, whereupon, in 1873, Mrs. Silsbee petitioned the county court for the appointment of a guardian for her grandson, and for a sale of his interest in lot 3; also that out of the proceeds of the sale she might be paid the amount of an alleged indebtedness of Mrs. Israel to her. Upon such petition a guardian was appointed for the respondent, who duly qualified as such. The guardian at once petitioned the same court for a license to sell such interest, and for the adjustment of the claim of Mrs. Silsbee against the estate of Mrs. Israel. License was granted accordingly, and pursuant thereto the guardian sold the interest of his ward in lot 3 to Mrs. Silsbee for $1,555.55--that being the appraised value thereof--and the court confirmed the sale. The court also adjusted the claim of Mrs. Silsbee against her daughter's estate at $1,180, and only required her to pay over to the guardian the balance of the purchase money after deducting that amount therefrom. The sum (including interest) which she paid the guardian pursuant to this order was $506.98.

After the respondent became of age he petitioned the same county court to set aside so much of its former orders as adjusted the claim of Mrs. Silsbee against his mother's estate, and directed its payment out of the proceeds of such sale; and to require Mrs. Silsbee to complete her purchase by paying into court for the respondent the balance of such purchase money, with interest. The county court denied the prayer of the petition, and the respondent appealed to the circuit court from the order denying the same.

Pending these proceedings, the respondent received from the guardian the money paid to him by Mrs. Silsbee, with the interest thereon, and released him from all further liability on account of such guardianship. After a trial, in which the facts above stated were proved, the circuit court reversed the order of the county court refusing to grant the relief prayed, and decided and adjudged that the orders of the county court adjusting the claim of Mrs. Silsbee against the estate of her deceased daughter, and directing that the sum found due her be paid out of the proceeds of the sale of Maximillian's interest in lot 3, be set aside, canceled, and held for naught; and that Mrs. Silsbee be required to complete her purchase at the guardian's sale by paying into the county court the amount of the purchase money retained by her, with interest thereon from January 17, 1874. The judgment requires her to pay the same within 30 days after the date thereof, for the said Maximillian D. Israel, the petitioner herein, without prejudice to any right she may have to establish by proper proceedings any claim she may have against the estate of said Eliza Jane Israel, deceased.” From the judgment of the circuit court Mrs. Silsbee appeals to this court.

The record is very voluminous. Much testimony was given concerning the alleged claim of Mrs. Silsbee against the estate of her daughter, Mrs. Israel, and of the transactions of Mrs. Silsbee in respect to the estate of her deceased husband, Nicholas Smith. The records of the county court pertaining to that estate, involving the transactions and accounts of two successive administrators, were also read in evidence. It is deemed unnecessary to set out this testimony here. It is believed that the foregoing statement of facts is sufficient to a correct understanding of the questions determined by the court.Olin & Grinde, for respondent, Maximillian D. Israel.

Sloan, Stevens & Morris, for appellant, Ruth Silsbee.

LYON, J.

It is admitted, in behalf of Mrs. Silsbee, that her grandson, Maximillian D. Israel, the respondent, was the owner of an undivided seven fifty-fourths part of lot 3, in block 103, in the city of Madison: that she acquired the title to that interest by her purchase thereof at the guardian's sale; that the consideration which she agreed to pay therefor was $1,555.55; and that she paid to the guardian on account of her purchase, including interest, but $506.98. The balance of the purchase money--$1,180--she retains to satisfy her demands against the estate of Mrs. Israel, pursuant to the orders of the county court. It is admitted, in behalf of respondent, that the guardian's sale was regular and valid, and that his interest in lot 3 passed to Mrs. Silsbee by the guardian's deed thereof to her. But the respondent claims that the orders of the county court, by virtue of which she retains more than two-thirds of the purchase money, are invalid, and he has instituted this proceeding to vacate and set aside such orders, to the end that he may recover the unpaid balance in her hands. It would seem, therefore, that the proceedings in the administration and settlement of the estate of ...