State ex rel. Sanderson v. Mann

• Decision Date: 08 April 1890
• Citation: 45 N.W. 526,76 Wis. 469
• Parties: STATE EX REL. SANDERSON v. MANN, COUNTY JUDGE.
• Court: Wisconsin Supreme Court

76 Wis. 469

45 N.W. 526

STATE EX REL. SANDERSON

v.MANN, COUNTY JUDGE.

Supreme Court of Wisconsin.

April 8, 1890.

Appeal from circuit court, Milwaukee county.

November 26, 1889, the relator filed his petition in the circuit court for Milwaukee county, stating, in effect, that May 20, 1889, Edward Sanderson, then a resident of said county, died intestate, leaving him surviving a widow and four children, including the said relator, his heirs at law; that said intestate was the owner, at the time of his death, of real estate in said county of the value of $122,900, and of real estate situate elsewhere of the value of $2,050, and of personal property of the value of $506,990.08, amounting in the aggregate to $631,949.08; that said deceased then owed certain sums of money to various parties; that such proceedings were had in said county court in probate, that July 2, 1889, said widow and said relator and one William Sanderson were duly appointed administrators of said estate, and thereupon duly qualified as such, and letters of administration therein were thereupon duly issued to them under the seal of said court, and that they have ever since, and now are, acting as such administrators; that October 2, 1889, said administrators duly made a true inventory of all said real and personal property, and duly offered to return the same to said court, but said court declined to receive the same; and thereafter the said property was duly appraised by the appraisers appointed by said county court for that purpose, and the appraisal thereof was of the value stated, and said inventory was duly verified by said administrators, and said appraisal duly certified by such appraisers, and by said appraisers delivered to said administrators; that said respondent was, at all the times mentioned, and has been and is the county judge of said county, duly qualified and acting as such; that November 25, 1889, said petitioner caused said inventory and appraisals to be presented to said county court, to be filed and approved, but said court, by the judge thereof, then and there refused to accept proof of, or file the same, unless and until said administrators would first pay to the county treasurer of said county, for the use thereof, the sum of $2,631.95, according to the provisions of chapter 176, Laws 1889; that no objection was or is made by said county judge to receiving and filing and allowing said inventory, except the failure to pay the said sum last named; that said administrators are by law and their letters of administration required to return said inventory into said county court, and are ready and willing on their part to do everything necessary to duly settle said estate, but are unable to do so by reason of said refusal of said court to accept, allow, and file said inventory and appraisal; that said sum last named is grossly exorbitant, and out of proportion for said estate, to pay as compensation for the services of the judge of said court, or the clerks in his office, in the settlement of said estate; that such requirement by the county judge to so pay such sum is based wholly on the provisions of said chapter 176, and that said petitioner is advised and believes that said act is unconstitutional and void, and that there is no law requiring any payment whatever; that said refusal to file and allow said inventory and appraisal will work great injury to the petitioner and the other parties interested in said estate, and that the petitioner has no remedy at law or otherwise, unless the writ of mandamus issue as herein prayed for, wherefor said petitioner prays that the alternative writ of mandamus may issue out of and under the seal of said circuit court, directing and commanding said John E. Mann, county judge, as aforesaid, to proceed at once to accept proof and file said inventory and appraisal, and to thereafter proceed to the allowance of any account that may be filed by said administrators, and to the settlement of said estate, according to law, and without the payment of said $2,631.95, or any sum whatever, or that he may show cause to the contrary thereof before said circuit court, at a time and place to be named by said court; that November, 26, 1889, such alternative writ was duly issued by said circuit court, and on the same day served on the said John E. Mann, as county judge, and thereupon filed in said circuit court; that thereupon, and on December 3, 1889, the district attorney of said county moved the circuit court to quash said alternative writ, for the reason that the relator herein, as appeared from the relation, had not complied with the provisions of chapter 176, Laws 1889; that upon the hearing of the respective counsel upon said motion it was ordered by the said circuit court that said motion to quash be, and the same was thereby, sustained. From the order so made the relator brings this appeal.Winkler, Flanders, Smith, Bottum & Vilas and Van Dyke & Van Dyke, for appellant.

John Toohey, for respondent.

CASSODAY, J., ( after stating the facts as above.)

The Hon. Edward Sanderson, residing in Milwaukee, died intestate May 20, 1889, leaving an estate valued at $631,949.08, consisting mostly of personal property. Chapter 176, Laws 1889, went into effect a short time prior to his death, and applied to the administration of estates in any county having a population of over 150,000, except that estates of $3,000 or less are exempt from its provisions. Of course, Milwaukee county is the only county in the state to which the act is applicable. By the terms of that act the administrators of the estate in question are required to “pay to the county treasurer of such county, for the use thereof, a sum equal to one-half of one per cent.” on $500,000 of the appraised value of such estate, and one-tenth of one per cent. of such value on the balance of said estate; that is to say, $2,631.95 in all. The act expressly requires that such sum shall be paid at the time of the return and approval of the inventory, and that no account of any executor or administrator shall be allowed without proof of such payment, and that the same shall constitute a part of the expense of administration. The only deduction from the gross valuation of such estate, provided for in the act, is the amount of existing specific liens. The act expressly repeals all acts and parts of acts inconsistent therewith. In obedience to that act the county judge refused to accept, approve, or file the inventory and appraisal of said estate unless and until said administrators shall first pay to the county treasurer, for the use of said county, said sum of $2,631.95. The relator denies the validity of that act, and has instituted this suit to compel the county judge to proceed with the settlement of said estate without the payment of the sum so exacted as a condition precedent.

1. It is claimed by the learned district attorney, that the exaction in question is essentially a probate fee, or in lieu of such a fee. The title of the act asserts that it is “in lieu of fees in all counties” of the population named. The repealing clause of the act, in addition to what is stated above, purports to repeal “all that part of section 2483, Rev. St. 1878, which provides for the payment of fees to the county treasurer in settlement of estates or guardianship.” The so-called fees provided for in that section ranged from twenty to seventy-five dollars, according to the valuation of the estate, and were payable to the county treasurer, for the use of the county, and applied solely to Milwaukee county. Such charge was first authorized by section 4, c. 121, Laws 1868, but was expressly repealed by chapter 40, Laws 1872. It was first applied to Milwaukee county by section 4, c. 98, Laws 1877, and then so incorporated into section 2483, Rev. St., and then continued by chapter 262, Laws 1880. Such charges have been treated by the legislature as something different than probate fees. Thus chapter 121, Laws 1868, first authorizing such charges, expressly prohibited the several county judges “from taking or receiving, either directly or indirectly, any fees whatever for their official services in the administration of the estates of deceased persons,” and provided for paying such judges a salary. These provisions were incorporated into sections 2454, 2455, Rev., (St. chapter 183, Laws 1880,) and expressly prohibited both the county judge of Milwaukee county and his assistant register of probate from receiving any fees of office or other compensation than his salary. A probate fee is manifestly a reward or compensation to a county judge or judge or register of probate, for services rendered or to be rendered. Obviously no such fee was required by law in Milwaukee county at the time of the passage of chapter 176, Laws 1889, except for certified copies of records and papers, as prescribed by section 2483, Rev. St. The same was true respecting other counties in the state. The payment required by that act, therefore, could not have been “in lieu of fees” of such judges or register, as might be inferred from the title of the act. On the contrary, it was manifestly in lieu of the charge or exaction of from twenty to seventy-five dollars, according to the valuation of the estate, thus required to be paid in Milwaukee county. This is made plain by the act itself, which requires such payment to be made “to the county treasurer of such county, for the use thereof.” The law nowhere prescribes the object or use to which the money so paid is to be applied. There seems to be nothing to prevent its being expended for any legitimate county purposes or public improvements. Besides, the amount of this exaction is in no way dependent upon the amount or value of such services of the judge or register of probate, but depends entirely upon such valuation or appraisal of the estate. Some small estates may be so complicated as to require very much more services from such judge or...