Leiser v. Pagel (In re Leu's Estate)

• Decision Date: 16 November 1920
• Citation: 179 N.W. 796,172 Wis. 530
• Parties: IN RE LEU'S ESTATE. LEISER v. PAGEL.
• Court: Wisconsin Supreme Court

172 Wis. 530

179 N.W. 796

IN RE LEU'S ESTATE.

LEISER

v.PAGEL.

Supreme Court of Wisconsin.

Nov. 16, 1920.

Appeal from Sauk County; J. H. Hill, Judge.

In the matter of the estate of Charles Leu, deceased. Claim by Hilda Leiser, special administratrix, of the estate of Amelia Leiser. From judgment rendered on such claim, Minnie Pagel executrix of the estate of Charles Leu, deceased, appeals, and claimant cross-appeals. Reversed and remanded, with instructions to disallow claim.

Charles Leu died testate August 18, 1919, leaving an estate valued at $2,369.71, which, by the terms of his will, executed eight days before his death, he bequeathed to his only daughter, Minnie Pagel. Charles Leu was twice married, and Minnie Pagel is a daughter by his first wife. After the death of his first wife he married a Mrs. Schroeder, who had adopted two nieces, one of whom was Amelia Leiser, mother of the plaintiff.

For many years Charles Leu and his second wife lived together upon a small piece of land in the outskirts of the village of Wonewoc, Juneau county, but about 1911 sold this real estate, and purchased a small place near Baraboo, Sauk county, Wis., where they resided until the death of his second wife, in February, 1919.

From 1904 and up to March, 1918, the said Amelia Leiser performed work, labor, and services for the said Charles Leu and wife, and expended sums of money for railroad fare in going from her home in Pittsville, Wood county, Wis., at the special instance and request of said Mr. and Mrs. Charles Leu, in reliance and upon the express promise upon the part of the said Mr. and Mrs. Charles Leu that they would compensate her for her said services by devising and bequeathing to her all their property, both real and personal, as compensation for her services and disbursements.

Amelia Leiser died in December, 1918. Mrs. Leu died in June, 1919, and Charles Leu died on the 18th day of August, 1919. His will was duly admitted to probate, letters testamentary issued thereon, and the time for filing claims against the estate was limited to January 6, 1920. On January 5, 1920, Charles Leiser, husband of deceased Amelia Leiser, and his children, as individuals, filed a claim against the estate of Charles Leu for $1,500 on account of services so rendered by Amelia Leiser, during her lifetime, to the testator. This claim was objected to, and thereafter, on May 10, 1920, Hilda Leiser, as special administratrix of the estate of Amelia Leiser, deceased, filed a claim against the estate of Charles Leu, deceased, in the amount of $1,643.80 for the same services. It seems that this claim was filed as amended claim or an amendment to the claim filed by Charles Leiser and his children January 5, 1920.

The county court held that Mrs. Leiser had rendered services to Mr. and Mrs. Charles Leu, both jointly and severally, upon their promise that she would receive upon their death all of their property, both real and personal, in compensation therefor; that the agreement, being one to devise real estate in payment of services, was void under the statute of frauds, but that the claimant might recover upon implied contract the reasonable value of such services, and rendered judgment for the value of the services rendered by said Amelia Leiser within six years prior to her death. From the judgment so rendered, the executrix of the estate of Charles Leu brings this appeal. A cross-appeal was also taken by the plaintiff from that part of the judgment disallowing the value of services rendered more than six years prior to Amelia Leiser's death.

Bentley, Bowler & La Mar, of Baraboo, for appellant.

Grotophorst, Thomas & Quale, of Baraboo, for respondent.

OWEN, J. (after stating the facts as above).

[1][2] It is well settled in this state that the title to personal property does not pass from a deceased person to his heirs or any one else without administration of such person's estate and a due assignment of the property by the personal representative of the deceased. McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489;Buttles v. De Baun, 116 Wis. 323, 93 N. W. 5. It follows that Charlés Leiser and his children, as individuals, had no right of action against the estate of Charles Leu to recover for the services rendered by Mrs. Leiser during her lifetime.

[3] The time for filing claims against the estate of Charles Leu was limited to January 6, 1920. On May 10, 1920, the administratrix of the estate of Amelia Leiser filed a claim against the estate of Charles Leu in the nature of an amendment to the claim filed by Charles Leiser and his children on the 5th day of January, 1920. It is apparent that the claim filed January 5, 1920, could not be thus amended so as to make a valid claim of it, nor to save the claim filed May 10th from the bar of the statute of limitations. The court properly treated the claim filed by the administratrix on May 10th as an original claim, and the question arises whether the claim could be filed in the manner it was after the time limited for presenting claims against the estate.

Appellant contends that the claim was barred by section 3844, Stats., which provides:

“Every person having a claim against a deceased person, proper to be allowed by the court, who shall not after notice given as required by sections 3840 and 3840m, exhibit his claim to the court within the time limited for that purpose, shall forever be barred from recovering such demand or from setting off the same in any action.”

The county court held that the claim was saved from the bar of said section 3844 by section 3860, Stats., which provides:

“If the claim of any person shall accrue or become absolute at any time after the time limited for creditors to present their claims the person having such claim may present it to the county court and prove the same at any time within one year after it shall accrue or become absolute.”

The question arises whether this claim accrued before the 6th day of January, 1920, the date limited for the filing of claims against the estate.

In Barry v. Minahan, 127 Wis. 570, 107 N. W. 488, it was held that section 3860 did not apply to a claim existing against the deceased at and before his death, and did not save such claim from the bar of section 3844. In that case the time for filing claims against the estate of ...