LaWver v. LYNCH

• Decision Date: 12 October 1926
• Citation: 191 Wis. 99,210 N.W. 410
• Parties: LAWVER ET AL. v. LYNCH ET UX.
• Court: Wisconsin Supreme Court

191 Wis. 99

210 N.W. 410

LAWVER ET AL.

v.LYNCH ET UX.

Supreme Court of Wisconsin.

Oct. 12, 1926.

Appeal from Circuit Court, Green County; George Grimm, Judge.

Action by Eliza J. Lawver and another as administrators of the estate of George Lawver, deceased, against John W. Lynch and wife. From an order overruling the defendants' demurrer to the complaint, they appeal. Affirmed.--[[[By Editorial Staff.]J. M. Becker, of Monroe, for appellants.

Sam Blum and Bruce M. Blum, both of Monroe (Louis F. Reinhold, of Freeport, Ill., of counsel), for respondents.

DOERFLER, J.

Plaintiffs bring this action as administrators of the estate of George Lawver, deceased, to foreclose a certain mortgage owned by said Lawver during his lifetime. The complaint alleges, among other things, “that the plaintiffs are the administrators of the estate of said George Lawver, now deceased.” The demurrer interposed to the complaint raises the sole issue whether the allegation above quoted in the complaint meets the legal requirements under our system of code pleading so as to make it invulnerable from attack by demurrer.

The complaint fails to allege whether the deceased at the time of his death was a resident or nonresident of Wisconsin, nor does it contain an allegation that proceedings were had for the administration of the estate of the deceased in a court of competent jurisdiction in this state, or in a court of foreign jurisdiction, or that letters of administration were issued to the plaintiffs by any such court.

[1][2] Executors and administrators are authorized to prosecute or defend actions in this state. Section 287.16 of the Statutes authorizes an executor or administrator appointed in a foreign jurisdiction, and where no executor or administrator shall have been appointed in this state, upon filing his original appointment or a copy thereof duly authenticated as required to make the same receivable in evidence in any county court in this state, to prosecute or defend any action or proceeding relating to said estate the same as an executor or administrator duly appointed by a court in this state. This clearly indicates that a foreign executor or administrator is given certain rights in the prosecution or defense of actions in this state, provided, first, that no executor or administrator shall have been appointed in this state, and, second, where he shall have filed his original appointment or a copy thereof duly authenticated, as required by section 287.16 of the Statutes.

Section 328.32 of the Statutes provides that--

“Whenever a plaintiff shall sue as an executor, administrator, guardian or trustee and shall allege in his complaint his due appointment as such, and, if appointed in another state or foreign country, the filing or recording of the authenticated copy of his appointment, as required by the laws of this state, such allegations shall be taken as true unless specifically denied by the defendant by his answer duly verified.”

The effect of this statute is to create certain results as to proofs where allegations are contained in the pleadings and are not specifically denied in the answer; otherwise this statute has no bearing upon the issue presented herein. While section 287.16 apparently requires a compliance with certain conditions precedent before a foreign executor or administrator can prosecute or defend an action in this state, no conditions are required of an executor or administrator appointed by a court of this state, except that he be an executor or administrator. The specific requirements in the statute as to representatives of one class, and the absence of requirementsas to the other class, is...