N.Y. Life Ins. Co. v. Lathers' Estate (In re Lathers' Estate)

• Decision Date: 01 May 1934
• Parties: IN RE LATHERS' ESTATE. NEW YORK LIFE INS. CO. v. LATHERS' ESTATE.
• Court: Wisconsin Supreme Court

215 Wis. 151

254 N.W. 550

IN RE LATHERS' ESTATE.NEW YORK LIFE INS. CO.

v.LATHERS' ESTATE.

Supreme Court of Wisconsin.

May 1, 1934.

Appeal from a judgment of the County Court of Rock County; Jesse Earle, Judge.

On motion for rehearing.

FAIRCHILD, J., dissenting.

Mandate vacated, and judgment of county court affirmed.--[By Editorial Staff.]

For original opinion, see 251 N. W. 466.H. W. Adams, of Beloit (G. R. Wearing, of Beloit, of counsel), for appellant.

John B. Clark, of Beloit (Woolsey, Caskey & Woolsey, of Beloit, of counsel), for respondent.

FOWLER, Justice.

A motion for rehearing is made to procure reconsideration whether so much of the claim herein involved, as became due after the date limited by order of court for filing of claims, is properly filable and allowable under section 313.24, Stats. 1931 (repealed by chapter 190, Laws of 1933). We held in the opinion filed that it was. That opinion makes no reference to either of two decisions of the court directly to the contrary of our ruling: Kleinschmidt v. Kleinschmidt, 167 Wis. 450, 167 N. W. 827;Austin v. Saveland's Estate, 77 Wis. 108, 45 N. W. 955.

Statutes 1931 in force when the claim in suit was filed contained four provisions bearing upon the point at issue. Section 313.08 barred claims not filed within the time fixed by order of court; section 313.07 provided that the court might allow the present worth of claims to fall due in the future; sections 313.22 and 313.23 provided for the payment of contingent claims; section 313.24 provided as follows: “If the claim of any person shall accrue or become absolute at any time after the time limited for creditors to present their claims the person having such claim may present it to the county court and prove the same at any time within one year after it shall accrue or become absolute, and if established in the manner provided in this chapter the executor * * * shall be required to pay it * * *” or such part of it as the funds in his hands permit.

[1][2] It was held in the opinion filed that the claim in suit was on a contract that created “a direct and absolute liability on the part of the deceased; and that it cannot be filed as a contingent claim.” 251 N. W. 466, 468. There is no motion for rehearing as to this ruling, so this ruling is the settled law of the case. Although the portion of the claim allowed by the opinion fell due subsequent to the order limiting the time for filing claims, this portion of the claim as well as the portion that fell due prior thereto might have been allowed at its present worth under section 313.07. There is no question that the entire claim was “proper to be allowed” and under the express terms of section 313.08 was barred unless section 313.24 saves the portion of it that fell due after the date limited by the order of the court for filing claims.

In the Kleinschmidt Case, supra, a claim, absolute in character, but not due until April, 1917, was filed on May 5, 1917. The time fixed by order of court for filing claims was the first Tuesday in May, 1916. The claim was disallowed by the county court and on appeal to the circuit court was allowed. On appeal to this court the judgment of the circuit court was reversed and the claim disallowed. In the opinion of the court, page 453 of 167 Wis., 167 N. W. 827, 828, it is stated: “The claimant contends that the claim was properly filable under section 3860 (now section 313.24), which provides that any claim accruing or becoming absolute after the time limited for creditors to present their claims may be presented to the county court, proved, and allowed at any time within one year after it shall have accrued or become absolute. It will be seen that, under the provisions of section 3844 (now section 313.08), if the claim was a proper one to be filed against the estate within the time fixed for filing claims, it was barred because not so filed.” The opinion then goes on to say that under section 3843, now section 313.07, providing for allowance at their present worth of claims falling due in the future, the claim was one “proper to be allowed” by the court, and because it was not filed before the time limited by order of court for filing claims it was barred by section 3844, now section 313.08. It thus appears that we must hold that the claim here in suit was barred unless we overrule the Kleinschmidt Case.

The opinion of the court in the instant case turns upon the point that a cause of action upon an instrument for the recovery of money does not accrue until the money becomes due by the terms of the instrument, and holds by analogy that a claim does not accrue until such time, and therefore that the portion of the claim in suit might be filed under section 313.24. The reasoning is forceful and would be convincing but for the prior ruling of the court and the consideration that the phrase “shall accrue or become absolute” may be construed as merely placing the terms “accrue” and “become absolute” in apposition, or as meaning the same thing, which would make the statute applicable to contingent claims only.

It is further to be noted that the opinion of the court (251 N. W. 466, 469) states that “it seems to have been recognized in Ernst v. Nau, 63 Wis. 134, 23 N. W. 492, that such a claim could be filed pursuant to either provision,” that is, under section 3843 (§ 313.07) providing for allowance at present worth of claims absolute falling due in the future, or section 3860 (now § 313.24) relating to claims that “shall accrue or become absolute.” But the opinion in the Ernst Case states, pages 138, 139 of 63 Wis., 23 N. W. 492, 494: “When the claim is proved under this section (3860, now section 313.24) within one year after it becomes absolute”--thus indicating that the court contemplated section 3860 (§ 313.24) as covering contingent claims not filed and proved under sections 3858 (§ 313.22) or 3859 (§ 313.23). The claim therein involved was in fact a contingent claim. That the court considered the statement above quoted as applying only to a contingent claim appears from the opinion in the Austin Case, supra, in which a claim absolute was involved, and wherein it is said, page 113 of 77 Wis., 45 N. W. 955, 956: “Manifestly, these notes (joint and several notes not due at the time fixed by court order for filing of claims) were provable as a claim against the estate within the time limited in the order. This disposes of the contention that the notes in question constituted a contingent claim within the meaning of section 3858, Rev. St. (§ 313.22), and hence provable within the time prescribed by section 3860,...