Shupe v. Jenks

• Decision Date: 06 March 1928
• Citation: 218 N.W. 375,195 Wis. 334
• Parties: SHUPE ET AL. v. JENKS ET AL.
• Court: Wisconsin Supreme Court

195 Wis. 334

218 N.W. 375

SHUPE ET AL.

v.JENKS ET AL.

Supreme Court of Wisconsin.

March 6, 1928.

Appeal from a judgment of the Circuit Court for Clark County; Hon. Emery W. Crosby, Judge.

Action by John Shupe and others against R. M. Jenks and others. Judgment for defendants dismissing the complaint, and plaintiffs appeal. Reversed and remanded.--[By Editorial Staff.]

Action begun ______, 192--. Judgment entered December 15, 1926.

Appeal from a judgment of the circuit court for Clark county, Hon. Emery W. Crosby, judge, in defendants' favor, dismissing the complaint, with costs.

The action is one brought by the plaintiffs, heirs at law of one Frank B. Shupe, deceased, with the consent of the county judge of said county, who was also made a party plaintiff hereto, against the defendants R. M. Jenks, the administrator of the estate of the deceased, and the two sureties upon his bond, viz., A. A. Graves and B. Christman.

On the 17th day of May, 1921, the defendant Jenks, who at that time was the cashier of the Loyal State Bank, was appointed by the county court of Clark county, upon proceedings duly had in that behalf, the administrator of the estate of the deceased. The bond for $5,000 was duly executed and approved by the court, and the administrator then entered upon the performance of his official duties.

The assets of the estate consisted in part of 15 shares of the capital stock of the Loyal State Bank. No official inventory was made or filed by the administrator, and the estate at no time was appraised, as required by the statutes. The following claims were duly filed by creditors in the matter of the estate, to wit: Note of Helen Emerson for $2,800; note of the loyal State Bank for $2,000; and a claim of Etta & Son for $3. The Emerson note was settled outside of court and withdrawn from the estate's files. The note of the bank was settled; the widow contributing the major portion of the amount required, and the administrator the balance. The claim of Etta & Son was paid. Owing to the financial condition of the bank in the fall of 1923, an assessment of 200 per cent. on the capital stock was levied, and, the estate failing to comply therewith, the stock was sold, with the result that the 15 shares became a total loss to the estate. It further appears that no effort was made by the administrator to sell or dispose of the 15 shares of stock in the Loyal State Bank, notwithstanding the repeated requests of the heirs in that behalf.

On December 15 and December 31, 1921, 28 shares of the capital stock of the bank belonging to the defendant Graves, who was the president and principal stockholder of the bank, were sold through the defendant Jenks to twelve different persons, for the sum of $125 per share, the purchasers executing their promissory notes therefor, and the defendant Jenks testified that at the time of the sale he considered the purchasers financially responsible. Up to the time of the trial, none of these notes had been collected. On March 16, 1922, 4 shares were sold to three different parties, and on April 15, 1922, 1 share was sold, these latter shares yielding $125 per share, one share being sold for $123. It also appears from the testimony of one Richardson, who became the assistant cashier after the reorganization of the bank, that the bank was insolvent since 1919, and that the principal cause of such insolvency was frozen assets; that the book value of the stock was $125 per share.

At the close of the testimony, pursuant to a motion of defendants' counsel, the court directed a verdict in defendants' favor, and judgment was thereupon rendered accordingly, dismissing plaintiffs' complaint, with costs. From the judgment so entered, this appeal was prosecuted. Further facts will be referred to in the opinion.Rush & Devos, of Neillsville, for appellants.

Goggins, Brazeau & Graves, of Wisconsin Rapids, for respondents.

DOERFLER, J.

Plaintiffs' counsel in his complaint specifically charges a failure on the part of the defendant Jenks, as administrator, to make and file an inventory and to cause an appraisal to be made of the assets; also a failure to offer for sale and dispose of the 15 shares of stock in the Loyal State Bank; and alleges that, as a result of such failure, the conditions of the administrator's bond were breached, and that the heirs of the deceased suffered a loss of $1,875. Plaintiffs also in their complaint allege a number of other breaches of the official bond, such as the failure to take the proper legal steps necessary to wind up the estate; failure to pay the claims of creditors; failure to make and file an account, etc.

[1][2][3][4] An administrator is a trustee, and, as such, holds the legal title to the personal property. In the performance of his duties, if he exercises ordinary care and acts in good faith, the administrator, like a trustee, will be protected by the court. The appraisal of the assets scheduled in the inventory is designed to fix a standard for the guidance of the administrator in the sale of the personal property, and, while acting in good faith, the property may be sold by him at public or private sale, at a price equal to, or in excess of, the appraised value, and the legality of his acts cannot be questioned, unless they are...