Meyer v. Barth

• Decision Date: 22 October 1897
• Citation: 72 N.W. 748,97 Wis. 352
• Parties: MEYER v. BARTH ET AL.
• Court: Wisconsin Supreme Court

97 Wis. 352

72 N.W. 748

MEYER

v.BARTH ET AL.

Supreme Court of Wisconsin.

Oct. 22, 1897.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Christ H. Meyer, as trustee of the estate of Lurinda Shepardson, against Peter Barth and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This action is brought against the sureties upon a bond given by the trustee of a testamentary trust. The facts are that one Coleman was the executor of the will of one Lurinda Shepardson, deceased, which will contained a number of testamentary trusts. On the 5th day of July, 1893, Coleman declined to act or qualify as trustee under the will, and thereupon the county court of Milwaukee appointed John B. Koetting such trustee; and, on the 11th day of the same month, Koetting filed in said court his bond for the faithful performance of his duties as trustee, in the penal sum of $164,000, upon which bond the appellants, Barth and others, were sureties. Said bond was approved by the court, and thereupon Coleman delivered over to Koetting, as trustee, securities amounting to $83,004.44. Of this amount, the sum of $53,000 was represented in bank certificates of deposit, as follows: One certificate issued by the First National Bank of Milwaukee, $28,000; one certificate issued by the Wisconsin National Bank of Milwaukee, $10,000; one certificate issued by the South Side Savings Bank of Milwaukee, $15,000; one certificate issued by the South Side Savings Bank of Milwaukee, $3,000. At the time he received these certificates, Koetting was the cashier of said South Side Savings Bank, and he deposited all the certificates in said bank upon receipt thereof. The bank closed its doors on the morning of July 23, 1893, in a bankrupt condition, and has never resumed business. At the same time, Mr. Koetting absconded from the state, and was absent for a number of months, his whereabouts being unknown. On the 12th of August following, upon a petition of the sureties upon Koetting's bond, who are the appellants here, Koetting was removed as trustee, and the plaintiff was appointed as trustee in his place. The reason for the application being made to the circuit court was that the county court would not be open until September, the county judge being absent from the state. Soon after Meyer's appointment, he received the two certificates of deposit issued by the South Side Savings Bank, amounting to $18,000, and other securities of the trust estate amounting to $26,728.82, but did not receive the certificates of deposit issued by the First National Bank and the Wisconsin National Bank, aggregating $38,888. These last-named certificates of deposit had been used by Koetting for the benefit of the bank, and were never accounted for, and no question is raised in this action as to the liability of Koetting and his bondsmen for them. Upon the return of Koetting to Milwaukee, he was ordered by the county court of Milwaukee to make and file his account for his trusteeship, which he did on the 8th day of February, 1896. In this account and report he admitted the receipt of the securities from Coleman as hereinbefore stated, and alleged the turning over to Meyer, as trustee, of all said securities, save the certificates of deposit. It further appears upon the accounting that the plaintiff, as trustee, had received certain dividends from the receiver of the South Side Savings Bank upon the certificates of deposit of said bank held by him. The county court, after crediting said dividends, found that there was...