Rudolf v. Malone

• Decision Date: 07 November 1899
• Citation: 104 Wis. 470,80 N.W. 743
• Parties: RUDOLF ET AL. v. MALONE ET AL.
• Court: Wisconsin Supreme Court

104 Wis. 470

80 N.W. 743

RUDOLF ET AL.

v.MALONE ET AL.

Supreme Court of Wisconsin.

Nov. 7, 1899.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by Solomon Rudolf and others against J. E. Malone and others. From a judgment dismissing the complaint, plaintiffs appeal. Reversed.

This is an action for contribution, brought by eight sureties against three alleged cosureties for money paid on bonds given by one W. T. Rambusch as executor of the will of one John Nelson, deceased. The complaint alleges the appointment of Rambusch as executor, and the giving of an executor's bond by him January 5, 1892, which was signed by five of the plaintiffs and the three defendants as sureties. The complaint further alleges the issuance of letters testamentary to Rambusch; that he entered upon his duties as executor, and received property of the estate to the amount of nearly $28,000; and that he afterwards embezzled the sum of $13,730.15 thereof, which embezzlement is alleged to have been completed upon the 8th day of August, 1893. The complaint further alleges that Rambusch absconded in October, 1896, and committed suicide; that prior to said absconding, and on the 8th day of August, 1893, Rambusch, as principal, delivered and filed with the county court of Dodge county an executor's bond, as additional and cumulative to the first bond, which was signed by five of the plaintiffs in this action, who were also signers of the first bond, and by the three remaining plaintiffs, who were not sureties upon the first bond, and was not signed by the three defendants in the action. This second bond is set forth in the complaint, and is in the usual form of an executor's bond, save that in the recitals preceding the obligatory words the giving of the previous bond is recited, and the following clause is added: “And whereas, J. E. Malone, one of the sureties on said bond, has asked to be released from the same, and Bernhard Hauser, another of said sureties, has ceased to be a resident of said county of Dodge: Now, therefore, if said W. T. Rambusch, executor as aforesaid, shall administer according to law and the will of the testator all the goods, chattel rights, credits, and estate of said deceased which have and shall at any time come to his possession,” etc. Both bonds are alleged to have been in the penal sum of $40,000. The complaint further alleges the settlement in the county court, upon due notice both to plaintiffs and to defendants, of the final account of said executor, and the determination of his embezzlement at $13,730.15, and the payment by the plaintiffs of the sum of $11,000 to the proper parties in settlement of such embezzlement, and...