State Banking Comm'n v. Reinke
| Decision Date | 12 January 1943 |
| Citation | 6 N.W.2d 349,241 Wis. 362 |
| Court | Wisconsin Supreme Court |
| Parties | STATE BANKING COMMISSION v. REINKE. |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Shawano County; Arold F. Murphy, Judge.
Action by the State Banking Commissioner as security receiver in charge of liquidation of the Farmers Tri-County Bank, Aniwa, Wisconsin, against Oscar A. Reinke as an heir of Otto A. Reinke, deceased, to whom part of the estate had been distributed to recover a stockholder's double liability on bank stock owned by decedent during his lifetime. From a judgment for defendant, plaintiff appeals.-[By Editorial Staff].
Affirmed.
This action was begun on August 12, 1938, by the State Banking Commission of Wisconsin as statutory receiver in charge of the liquidation of the Farmers Tri-County Bank of Aniwa, Wisconsin, plaintiff, against Oscar A. Reinke, defendant, to recover a stockholder's double liability under sec. 221.42, Wisconsin Stats., on bank stock in the Farmers Tri-County Bank, Aniwa, Wisconsin, owned by the deceased Otto Reinke in his lifetime. The action was brought against Oscar A. Reinke as an heir to whom part of the estate had been distributed.
The facts are as follows:
August 2, 1932-Otto A. Reinke died. His estate was duly probated in Outagamie County.
January 16, 1933-Time for filing claims expired.
February 21, 1934-The Aniwa Bank became insolvent. Its assets were placed in the hands of the Banking Commission as statutory receiver. On the same date the statutory assessment became due and payable.
February 21, 1934-The estate of Otto A. Reinke was the owner of record of 18 shares of stock in said Bank.
August 7, 1934-Judgment was entered in the county court for Outagamie County, assigning and transferring the property belonging to the estate of Otto A. Reinke to Oscar A. Reinke and Adeline Reinke. The assets in the hands of the administrator at the time of the entry of this judgment still remain in the hands of the administrator and have not been distributed. At some prior time it was stipulated that the sum of $5,000 had been paid to Oscar A. Reinke from the estate.
In its complaint in this action the plaintiff alleged the rendition of the judgment in the county court for Outagamie County on the 7th day of August, 1934, and “That after the entering of said judgment on that day, as this plaintiff is informed and verily believes, there were left no assets whatsoever in the hands of the said administrator, which belonged to the estate of the said Otto A. Reinke, deceased. Alleges that whatever property there may have been in the hands of the administrator after August 7, 1934, was not property of the estate of Otto A. Reinke, but property belonging individually to Oscar A. Reinke and Adeline Reinke, his mother; that the said administrator, Oscar A. Reinke, as this plaintiff is informed and verily believes, has not now, and has not had since the 7th day of August, 1934, the date of the said decree assigning said estate, any assets, estate, money, or property whatsoever belonging to the said estate. * * *
“That as such heir and beneficiary of the estate of his father, he received, as this plaintiff is informed and verily believes, cash and property from the said estate to the extent of more than Five Thousand ($5000) Dollars.”
Ken Traeger, of Gresham, for appellant.
Velte & Molzow, of Neenah (M. G. Eberlein, of Shawano, of counsel), for respondent.
The plaintiff seeks to recover of the defendant the amount of the double liability under secs. 313.25 and 287.19, Stats.1937.
Section 313.25 provides: “When a contingent claim shall have become absolute and been allowed, and the executor or administrator shall not have sufficient assets to pay such claim, the creditor may recover such part of his claim as the executor or administrator has not assets to pay from the heirs, devisees or legatees who have received property from the estate that was liable for the payment of the debts of the decedent.”
Plaintiff contends that this section must be read in connection with sec. 287.19, which provides: “If an action mentioned in section 287.18 [] be brought the plaintiff must show that he has been or will be unable, with due diligence, to collect his debt or some part thereof by proceedings in the county court or from the personal representatives of the decedent and that he brings his action pursuant to sections 313.22 to 313.25; and in such event the plaintiff may recover” etc.
It is the contention of the defendant that before an action can be brought against an heir under these statutes upon a contingent claim, the claim must have been filed, it must have become absolute and it must have been allowed.
Section 313.22 provides:
Section 313.23 provides:
There can be no doubt that the claim of the plaintiff in the present case was contingent and that it did not become absolute until after the time fixed by the court for the filing of claims had expired. See discussion Estate of Lathers, 1934, 215 Wis. 151, 160 et seq., 251 N.W. 466,254 N.W. 550.
In Mann v. Everts, 1885, 64 Wis. 372, 25 N.W. 209, it was held that a contingent claim against a decedent's estate which does not accrue and cannot be proven until after the administration is closed and the estate settled, is not barred because not presented for allowance.
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State Banking Comm'n v. Reinke
...TEXT STARTS HERE On motion for rehearing.-[By Editorial Staff]. Decision in accordance with opinion. For former opinion, see 241 Wis. 362, 6 N.W.2d 349. Ken Traeger, of Gresham, for appellant.Velte & Molzow, of Neenah (M. G. Eberlein, of Shawano, of counsel), for respondent.PER CURIAM. On m......