Maldaner v. Beurhaus

• Decision Date: 30 October 1900
• Citation: 108 Wis. 25,84 N.W. 25
• Parties: MALDANER ET AL. v. BEURHAUS ET AL.
• Court: Wisconsin Supreme Court

108 Wis. 25

84 N.W. 25

MALDANER ET AL.

v.BEURHAUS ET AL.

Supreme Court of Wisconsin.

Oct. 30, 1900.

Appeal from circuit court, Jefferson county; B. F. Dunwiddie, Judge.

Suit by Mary Maldaner and others against Pauline Beurhaus and others. From a decree in favor of defendants, complainants appeal. Reversed.Quarles, Spence & Quarles, for appellants.

Harlow Pease, for respondent Matilda Maldaner.

John G. Conway, for respondent Pauline Beurhaus.

CASSODAY, C. J.

This action was commenced August 19, 1899, by the plaintiffs, Mary and Arthur Maldaner, against the defendants, Pauline Beurhaus, Matilda Maldaner, Edward Maldaner, and William Volckmann, to vacate and set aside a judgment and decree of the county court of Jefferson county entered February 21, 1893, assigning the estate of Henry Maldaner, deceased, and for an accounting, and that the true residuum of such estate be ascertained, and that the defendants Pauline, Matilda, and Edward be severally required to pay to the plaintiffs a sufficient amount to make the share of each of them equal to the share of such defendants. The defendants Pauline and Matilda each separately demurred to the amended complaint. The court entered two separate orders, one sustaining each of such demurrers. The plaintiffs bring a separate appeal from each of such orders. The amended complaint alleges, in effect, that December 23, 1891, Henry Maldaner died at his domicile in Watertown, leaving a last will and testament, a copy of which is annexed to, and made a part of, such complaint, and which will was duly admitted to probate in said county court, February 2, 1892; that letters testamentary were thereupon issued to the defendant William Volckmann and the plaintiff Mary Maldaner, as executor and executrix of such will; that after paying and discharging all debts of the estate and all expenses of the administration thereof, and on February 21, 1893, such executor and executrix duly filed their final account, and prayed for the settlement and allowance thereof, and for their discharge; that such account represented that they had on hand for distribution and assignment, in money, securities, and property, the amount of $43,547.15 in value; that thereupon and on the same day the county court made and entered an order and decree, therein assigning such residue, as provided by the will, in equal parts to the plaintiffs and defendants Pauline, Mary, and Edward, subject to certain deductions on account of payments theretofore made to the plaintiffs, and decreeing that the executor and executrix, upon payment of the several sums specified in such decree to the plaintiffs and defendants named, and the filing of receipts therefor, be discharged from such trust; that a copy of such decree is annexed to, and made a part of, such complaint; that thereafter, and in pursuance of such decree, the executor and executrix paid and assigned to each of the plaintiffs and each of the three defendants named money, securities, and property purporting to be the amount and value of the several sums directed in and by such decree, and took from each of such persons, respectively, receipts therefor and filed the same in the county court; that among such assets were a note and mortgage purporting to have been executed by one John Tesch for $1,600 and interest, and also a note and mortgage purporting to have been executed by one Frederich Gogert for $3,000 and interest; that at the time of such settlement the Tesch note and mortgage, with the accrued interest, amounted to $1,707.16, and the same was assigned to the plaintiff Mary Maldaner, by such executor and executrix, as a part of her distributive share of such estate; that after the death of one W. T. Rambusch, October 18, 1896, it was discovered that the Tesch note and mortgage had been forged by Rambusch, and was of no value; that at the time of such settlement the Gogert note and mortgage, with accrued interest, amounted to $3,195, and the same was assigned to the plaintiff Arthur Maldaner by such executor and executrix as a part of his distributive share of such estate; that after the death of Rambusch it was discovered that, in truth and in fact, Gogert received, upon the execution of that note and mortgage, only $2,000, and that he and his wife were induced to sign such instrument through the false and fraudulent representations of Rambusch; that upon the discovery of such fraud and misrepresentations, after the death of Rambusch, the plaintiff Arthur Maldaner surrendered that note and mortgage, and took from Gogert and wife a new note and mortgage for $2,000 only; that the testator received such notes and mortgages from Rambusch who, to conceal such forgery and fraud, had, from time to time, paid what purported to be the interest due thereon; that the plaintiff Arthur Maldaner became of age October 21, 1895; that upon such settlement he received a certain other note and mortgage, which the testator had obtained through Rambusch, and which the maker thereof claimed to have been altered by Rambusch, and refused to pay until suit brought, which was finally decided April 10, 1899, and until then it was impossible to determine whether such note and mortgage were void or valid, and hence the delay in bringing this action.

By the terms of the will, a copy of which is annexed to, and made a part of, the complaint, the residue of the estate was to be equally divided among the widow, Mary Maldaner, and the five children of the testator, Frank J., Pauline, Matilda, Edward, and Arthur. It appears from a copy of the decree of the county court, which is annexed to, and made a part of, such complaint, that the son Frank J. had, prior to the rendition of such decree, assigned and transferred all his interest in the estate to the executors for the benefit of the other residuary legatees...