Merton v. Puffer (In re Ryan's Estate)

• Decision Date: 17 June 1914
• Citation: 157 Wis. 576,147 N.W. 993
• Parties: IN RE RYAN'S ESTATE. MERTON v. PUFFER.
• Court: Wisconsin Supreme Court

157 Wis. 576

147 N.W. 993

IN RE RYAN'S ESTATE.MERTON

v.PUFFER.

Supreme Court of Wisconsin.

June 17, 1914.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Proceeding by Ernest Merton against George D. Puffer, executor of Timothy E. Ryan, deceased, for the establishment of a claim against the estate of the deceased. From a judgment of the circuit court allowing the claim, the executor appeals. Affirmed.

This is a claim for contribution brought by one partner against the estate of his deceased copartner. The essential facts were not disputed. Ryan, Merton & Newbury were lawyers at Waukesha, and acted as attorneys for certain contestants in the matter of the will of the late John A. Rice; Mr. Ryan being actively in charge of the litigation. That gentleman devised and carried out an agreement by which the contest was settled, the will admitted to probate, and the estate distributed between all parties interested in a manner quite different from that provided by the will, and by which also the said firm was to receive $7,500 for their services in the whole litigation. This agreement was given effect by both the county and circuit courts of Waukesha county, and $5,000 was paid to the firm in August, 1907, and $2,500 in December, 1908; each payment being distributed to the three partners in shares according to their rights in the partnership business. The firm was dissolved April 1, 1910, and a new partner, Mr. Jacobson, was taken in. Mr. Ryan died July 13, 1911. The Rice estate litigation came by appeal to this court and was decided October 12, 1912 (Cowie v. Strohmeyer, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778), and it was held that the settlement agreement was invalid and that the sums received by the firm of Ryan, Merton & Newbury under the agreement must be paid back to the trustee of the estate. This decision was followed by a judgment of the circuit court of Waukesha county, December 16, 1912, in accordance with its terms, and subsequently Mr. Merton, the claimant, paid to the trustee the sum of $7,627.06, of which one-half, i. e., $3,813.53, was Mr. Ryan's share. On December 23d following, Mr. Merton presented his claim for the last-named sum against the estate of Mr. Ryan, although the time limited for presentation of claims against that estate had expired January 25, 1912. The claim was allowed in the county court and on appeal by the circuit court, and the executor appeals from such allowance.Daniel H. Grady, of Portage, for appellant.

Van Dyke, Rosecrantz, Shaw & Van Dyke, of Milwaukee, for respondent.

WINSLOW, C. J. (after stating the facts as above).

The appellant claims that the judgment should be reversed because: (1) The judgment in the case of Cowie v. Strohmeyer is res adjudicata; (2) the parties were wrongdoers between whom there can be no contribution; (3) there was no competent proof of the settlement of the partnership affairs of Ryan, Merton & Newbury; (4) the claim was barred because not filed within the time limited for general creditors to present claims against the estate.

[1] I. The claim that the decision in the Cowie Case is res adjudicata as to the rights of the firm as between themselves is plainly untenable. No issue of this kind was raised or tried in that case, and, when it is claimed that the judgment in one case determines the rights of the parties in another...