Schoenwetter v. Schoenwetter
| Decision Date | 24 October 1916 |
| Parties | SCHOENWETTER v. SCHOENWETTER ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.
Action by Edward A. Schoenwetter, as trustee, etc., against Lewis F. Schoenwetter, impleaded with Barney A. Schoenwetter. From an order sustaining a general demurrer to the answer of the defendant Lewis F. Schoenwetter, he appeals. Ordered affirmed.
This is an appeal from an order sustaining a general demurrer to the answer of the defendant Lewis F. Schoenwetter in an action upon a promissory note of $3,800, executed by the defendant Barney A. Schoenwetter and the appellant, as joint and several makers, and payable four years after date to the plaintiff “as trustee of the estate of Louise Schoenwetter, deceased.”
It appeared by the complaint that the plaintiff had not been appointed trustee by any court, but that he was made a trustee by an agreement, of the same date as the note executed by all the children and heirs at law, ten in number, of one Louise Schoenwetter, deceased; the plaintiff and the defendant Barney being among said heirs, but not the appellant Lewis. This agreement, after reciting the fact of the death of Louise and the desire of the parties to settle her estate without legal proceedings, states that the estate of the deceased consists of the sum of $3,800 represented by notes and mortgages of that amount “executed to and held by Barney A. Schoenwetter”; that the balance of the estate after payment of the funeral expenses is $3,563.27; that the expenses of a headstone and an abstract, as well as the sum of $50 for a cemetery lot, are yet to be paid; that it is agreed that Edward be appointed trustee of the estate of Louise to collect the assets, to make the payments still to be made, and divide the balance between the parties in equal shares, and that Barney execute and deliver to Edward as trustee his secured promissory note for the sum of $3,563.27 (being the balance of the estate after deducting the funeral expenses). The agreement closed with a power of attorney by all of the heirs empowering Edward to collect the note and make division of the money among the heirs. The note, as before stated, was executed on the same day and was for the sum of $3,800, but was indorsed on that day with a payment of $236.73, leaving a balance of $3,563.27. Interest falling due April 15, 1911, is indorsed upon the note as paid.
By the first defense in the answer the defendant Lewis alleged that he was in fact a surety and not a maker of the note to the knowledge of the plaintiff, and received no consideration therefor, that the note was not paid at its maturity, and that no demand of payment was made on him, nor did he receive timely notice of the nonpayment thereof; by the second defense it is alleged that neither Barney nor appellant received any consideration for the note nor were either of them indebted to the plaintiff; by the third defense it is alleged on information and belief that Louise died testate, having by will disposed of her property “in various amounts to various of her children,” and that hence the liability of the defendant Barney to his mother is only due to the executor or lawful personal representative of the deceased Louise, and not to ...
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