Managan v. Shea

• Decision Date: 17 November 1914
• Citation: 158 Wis. 619,149 N.W. 378
• Parties: MANAGAN v. SHEA ET AL.
• Court: Wisconsin Supreme Court

158 Wis. 619

149 N.W. 378

MANAGAN

v.SHEA ET AL.

Supreme Court of Wisconsin.

Nov. 17, 1914.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Joseph Managan against Jerry J. Shea and others. From orders overruling demurrers to the amended complaint and bringing in a new party, defendants appeal. Affirmed.

This is an action against the defendant Jerry J. Shea and the Wisconsin Trust Company, as executor and trustee of the will of Kate Shea, deceased, to charge the property in the possession of such trustee with a lien to satisfy the demands of the plaintiff against Jerry J. Shea, and to foreclose a mortgage given by Jerry J. Shea on his interest in the lands of Kate Shea, deceased, to secure payment of $350 according to the condition of a promissory note, and for such other relief as may seem equitable.

Upon the death of one Kate Shea, no original will made by her could be found, but on March 8, 1912, an unsigned carbon copy of what purported to be her last will was presented to the county court of Milwaukee county for probate by one P. H. Kearns, the father and guardian of Mary Kearns and four other children mentioned in said supposed will as residuary legatees. This copy was rejected by the court, and Mr. Wilde was appointed administrator of the estate of the deceased. The deceased left as heirs at law Jerry J. Shea and Michael J. Shea, brothers, one sister, five minor children of a deceased sister, and Margaret Shea, daughter of a deceased brother. The deceased left property valued at $4,000. In February, 1913, the plaintiff loaned Jerry J. Shea $350, taking his note therefor and a mortgage as security from said Jerry J. Shea covering all of his right, title, and interest as an heir at law in and to the real estate owned by Kate Shea, deceased.

Later the original will of the deceased was found and admitted to probate on January 23, 1914. Cornelius Sullivan, named as executor, qualified on January 26th. After directing the payment of debts and naming Cornelius Sullivan as executor and trustee, the will devised and bequeathed all of the property owned by her to Sullivan, with the request that he convert the same into money or interest-bearing certificates as soon as practical, and hold it in trust for the following purposes:

“(A) To pay to Calvary Cemetery, the sum of two hundred dollars ($200.00) the income of which is to be used for the perpetual care of the cemetery lot of my family.

(B) Two hundred dollars ($200.00) is to be expended by my said trustee for funeral expenses of my brother Michael Shea.

(C) The remainder of my estate is to be invested by my said trustee, and the income thereof from time to time paid to my beloved brother, Jerry J. Shea. In the event that my brother, Jerry J. Shea, becomes ill or is otherwise in great need, my said trustee may pay to him from time to time such part of the principal of my estate as in his judgment he deems wise and necessary.

(D) After the death of my brother, Jerry J. Shea, and after the sum of two hundred dollars ($200.00) has been paid to Calvary Cemetery, and the sum of two hundred dollars ($200.00) set aside for the funeral expenses of my brother, Michael Shea, I direct that all the rest, residue and remainder of my estate be divided equally among Mary Kearns, Ellen Kearns, Henry Kearns, Teddie Kearns and Thomas Kearns.”

The note and mortgage executed to the plaintiff became due February 25, 1914. This action was originally commenced against Jerry J. Shea and Cornelius H. Sullivan, as executor and trustee. At that time Sullivan had not come into possession of any of the property of the estate; Martin E. Wilde had not rendered his final account as administrator and was in possession thereof. Wilde was made a party defendant upon application of the plaintiff. March 30, 1914, Sullivan died, and the Wisconsin Trust Company was appointed administrator with the will annexed. On May 23d an order was entered bringing in the Wisconsin Trust Company as a party defendant.

The defendants filed separate demurrers to the amended complaint, setting up as grounds: (1) Defect of parties defendant by omission of Mary Kearns, Ellen Kearns, Henry Kearns, Teddie Kearns, and Thomas Kearns, designated as residuary legatees under the last will and testament of Kate Shea, deceased; and (2) that the amended complaint does not state facts sufficient to constitute a cause of action.

The circuit overruled the demurrers of the defendants and gave the defendants leave to answer the complaint on payment of the sum of $10.

This appeal is from the orders overruling the demurrers to the complaint and the order bringing in the Wisconsin Trust Company, administrator with the will annexed, as a party defendant.

Lorenz & Lorenz, of Milwaukee, for appellants.

Douglas J. Mangan, of Milwaukee (Schmitz, Wild & Gross, of Milwaukee, of counsel), for respondent.

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

[1] The appellants concede that the complaint states a good cause of action against Jerry J. Shea for the recovery of a money judgment for the $350, with interest, due the plaintiff, and hence the general demurrer was properly overruled on that ground, under section 2649a, Stats. 1913. Nor is the exception to the order overruling the demurrer that there is a defect of parties defendant now urged before this court. The appellant, however, insists that the appeal from the order overruling the demurrer of the defendant the Wisconsin Trust Company raises the vital question in this litigation, namely:

“Can the creditor of one beneficially interested in an estate or trust maintain an action against an executor or trustee to control his conduct as to the payment or application of moneys in the hands of such executor or trustee belonging to the estate of his testator.”

This proposition of the appellant, in the light of the facts alleged, does not include all the inquiries presented in this case. The complaint alleges the giving of the note and mortgage by the defendant Jerry J. Shea; that he actually received this amount of money from the plaintiff at the time of the execution of the note; that the note is now due and remains wholly unpaid. It also appears from the allegation that the parties to the note believed that Jerry J. Shea had a vested interest in the real estate of Kate Shea, deceased, and that he obtained the loan from the plaintiff on the agreement that his interest in the decedent's estate was to be conveyed to the plaintiff by mortgage to secure payment of the loan. This mortgage so obtained by the plaintiff, under the circumstances, wholly fails of its purpose, because the decedent by her will bequeaths all of her property to a trustee, directing him to convert it all into interest-bearing securities, pay two bequests of...