Md. Cas. Co. v. John (In re Bienenstok's Estate)

Citation208 Wis. 676,242 N.W. 572
PartiesIN RE BIENENSTOK'S ESTATE. MARYLAND CASUALTY CO. v. JOHN ET AL.
Decision Date10 May 1932
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from an order of the County Court of Milwaukee County; Michael S. Sheridan, County Judge.

In the matter of the estate of Edgar Allen Bienenstok, deceased. From an order dismissing the petition of the Maryland Casualty Company to be subrogated to the rights of the Milwaukee Tank Works upon a contingent claim filed by latter against the estate, petitioner appeals.--[By Editorial Staff.]

Affirmed.

Petition of the Maryland Casualty Company to be subrogated to the rights of the Milwaukee Tank Works upon a contingent claim filed by the tank works against the estate, filed September 12, 1931. From an order dismissing the petition entered October 29, 1931, the petitioner appeals.

The deceased was president of the tank works, a corporation. As such he executed and delivered $25,000 of promissory notes of the corporation. The tank works, claiming the notes were fraudulently procured, brought suit for their return and to restrain their collection. A preliminary injunction was granted, and a $12,500 bond required as condition of granting it, which bond the casualty company issued, and which was conditioned on the tank works' payment of any notes on which it should be held liable. Some of the notes got into the hands of innocent third persons. Pending the litigation, the tank works made an assignment to trustees for the benefit of its creditors. After the assignment, the casualty company was notified to take over the litigation, and negotiated a settlement of the case to relieve itself of liability under the bond, and paid an aggregate of $9,625 to innocent holders, which payments were made with the knowledge of the trustees and attorneys of the tank works.

Bienenstok, who executed the notes, died prior to the commencement of the tank works' suit and the tank works filed against his estate a contingent claim for such amount, if any, as it might be obliged to pay to innocent holders of said notes, claiming that he signed and delivered the notes negligently and without authority. The attorney for the tank works negotiated a settlement of this claim against the estate for $1,500, and an order of court was made allowing the claim at that amount. Eight months after the order of court was entered, and nine months after the petitioner made its first, and six months after it made its last payment, the petitioner filed its petition asking that it be adjudged entitled to subrogation to the tank works' claim; that the order allowing the tank works' claim be vacated; that the $1,500 be ordered paid back into court, and that a retrial be had of the tank works' claim. The filing of the petition was within the period allowed by section 313.24, Stats., for the filing of contingent claims that become absolute after the time fixed by the court for filing claims. Hearing on the petition was had pursuant to an order to show cause, evidence was received, and on the evidence the court dismissed the petition. The appeal is from the order of dismissal.

James E. Coleman and Carl R. Becker, both of Milwaukee, for appellant.

Bender, Trump, McIntyre & Freeman, of Milwaukee, for respondents Trustees of Milwaukee Tank Works.

Fish, Marshutz & Hoffman, of Milwaukee (I. A. Fish and W. H. Voss, both of Milwaukee, of counsel), for respondent Leone F. Bienenstok.

FOWLER, J.

The county judge made no formal findings of fact...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT