Steinberg v. Saltzman

• Decision Date: 08 January 1907
• Citation: 130 Wis. 419,110 N.W. 198
• Parties: STEINBERG ET AL. v. SALTZMAN ET AL.
• Court: Wisconsin Supreme Court

130 Wis. 419

110 N.W. 198

STEINBERG ET AL.

v.SALTZMAN ET AL.

Supreme Court of Wisconsin.

Jan. 8, 1907.

Syllabus by the Court.

An order striking out a demurrer as irregular is not appealable.

If a person has the legal title to lands and is entitled to the possession thereof as against another wrongfully withholding the same, and such person's right involves fraud on the part of such other, which right must be established by evidence aliunde the record, such person may sue in ejectment for his vindication though he may also sue in equity.

In pleading fraud the facts in respect to the matter should be stated.

In pleading a matter relating to the existence or nonexistence of a public record the truth of which is readily ascertainable, allegations in respect thereto on information and belief are not sufficient.

When a cause for administering the estate of a deceased person exists and application is made therefor to the proper court, neither the circumstance that it is not made by a person entitled to the administration or that a person not so entitled is appointed so far vitiates the proceedings as to render the appointment wholly void. It is voidable, only by some appropriate direct proceeding; not by collateral attack.

When a person more than 12 years after arriving at his majority invokes equity jurisdiction for relief from acts which occurred more than 25 years prior thereto, his pleading should state some reasonable excuse for the delay.

Appeal from Circuit Court, Shawano County; John Goodland, Judge.

Action by David Steinberg and Martha Schemerhorn against August Saltzman and Emelie Saltzman. Judgment for plaintiffs, and defendants appeal. Appeal from order striking out second demurrer dismissed, and order overruling first demurrer affirmed.

The following shows so much of the complaint as is necessary to be considered.

Carl Steinberg died intestate July 6, 1878, leaving a widow Emelie Steinberg and three children by a former wife, being the plaintiffs in this action and one named Welhilm Steinberg. The latter before the commencement of this action duly transferred his interest in the lands hereinafter described to the plaintiffs and they now own the same. When Carl Steinberg died his son David was 5 years old and his daughter Martha was 6 years old. The widow Emilie and the children were the only next of kin and heirs at law of the deceased. He left the north half (N. 1/2) of the southeast quarter (S. E. 1/4) of section twenty-two (22) township twenty-seven (27) range thirteen (13) east, in Waupaca county, Wisconsin, the northeast quarter (N. E. 1/4) of the southeast quarter (S. E. 1/4) being his homestead upon which the family resided. He also left personal property of the value of about $600 or $700 and debts to the amount of $400 or $500. The value of the estate was about $1,500. Shortly after he died Gottlieb Saltzman presented to the probate court of Shawano county a petition for administration of the estate, which was the only petition ever filed in the matter, and was in the following words:

“The petition of Gottlieb Saltzman of said county, respectfully presents that Carl Steinberg, late of the town of Seneca, Shawano county, and state of Wisconsin, on the 6th day of July, 1878, at the city of New London, Waupaca county, Wisconsin, died intestate, as your petitioner believes; no last will or testament having been found or being known to exist. That the said deceased left a widow (Emelie Steinberg) and three children by a former wife. Viz:--Welhilm, aged 8 years; Martha, aged 6 years; and David of the age of 5 years, who with said wife constitute the family of said deceased.

That said deceased left goods, chattels, and personal property within the county and state to the probable amount of five hundred dollars, as your petitioner is informed and believes. That said deceased as your petitioner is informed and believes left real estate to the probable amount of eleven hundred dollars. That said deceased left debts due and unpaid to the probable amount of six hundred dollars.

Your petitioner also represents that he is half brother to the said deceased Carl Steinberg.

Your petitioner being desirous that the estate of the said deceased be legally administered, would pray that administration thereof be granted unto Herman Kleman of said town of Seneca, and in the county and state aforesaid, and that appraisers be appointed pursuant to the statutes in such cases made and provided according to the rules and practice of this court.

G. Saltzman.”

It was verified.

The probate court ordered a hearing on such petition and November 25, 1878, granted the same and the administrator appointed, in form, qualified as such, and thereafter proceeded to sell and dispose of the estate. Plaintiffs allege on information and belief that he disposed of the property for an inadequate consideration and did not attempt to obtain the full value therefor, and that defendants received the greater part thereof for a grossly inadequate consideration, the transaction being for the purpose of defrauding the children of the deceased. April 4, 1879, after disposing of the personal property the administrator made application to the probate court for leave to sell the real estate. The following is the only petition in that regard filed in the matter: (It was verified but that part we omit.)

“The petition of Herman Kleman respectfully represents, that the total amount of personal estate that has come to his hands as administrator is the sum of one hundred ninety-three dollars. That said amount has been disposed of in paying the expense of administration, the necessary funeral expenses and part of the debts of said deceased.

That the debts now outstanding and unpaid against the estate of said deceased amount to about the sum of five hundred dollars, as your petitioner believes.

That the said deceased died seised of the following described real estate, situate, lying and being in the county of Shawano and state of Wisconsin, to-wit: The north half of the northeast quarter of section twenty-two, township twenty-seven, range thirteen east; eighty acres.

That it was necessary to sell all of said real estate in order to pay said debts, and your petitioner would therefore pray that a license be to him granted to sell the all of said real estate and he will forever pray.

Dated at Seneca, the 4th day of April, 1879.

H. Kleman, Administrator.”

Plaintiffs allege on information and belief that no license or authority to sell said real estate was granted by the probate court, but that nevertheless the administrator, August 7, 1879, as such, sold and conveyed the same to August Saltzman for the expressed consideration of $1,300.00, but plaintiffs allege on information and belief that no part of such consideration was paid. Before such sale said Emelie Steinberg was married to the defendant August Saltzman. After the disposal of all of the property aforesaid the administrator filed, in form, an account of his administration in the probate court, showing payment to the widow of the deceased a large share of the estate after her marriage aforesaid, and a large amount of money paid for purposes and uses unauthorized by law and unwarranted by the circumstances, and a balance in his hands of $350.00. The said balance has not been paid to the heirs nor have they received any benefit therefrom. The administrator, Gottlieb Saltzman and others unlawfully and fraudulently conspired with the defendants to cheat and defraud the plaintiffs out of their rightful inheritance, the same being the property aforesaid. The children of the deceased were kept by defendants until they were of age, or nearly so, in ignorance not only of their father's estate, but of all matters in relation thereto, and without education. They were unable to speak English to any extent and were isolated upon the farm and not permitted to mingle with outside people, and great pains were taken to keep them in total ignorance of their father's estate and of their rights. They did not know or have any knowledge or information in regard thereto until June, 1895, when they were informed of the situation and immediately commenced an investigation of the same. The defendants claim title to the land mentioned under the deed aforesaid and are, and for many years have been, in possession of the same and in the enjoyment thereof, to the injury of the plaintiffs, and refuse to surrender their possession to the plaintiffs or to account to them. Plaintiffs pray judgment that the deed aforesaid be declared void; that plaintiffs' title to the land be affirmed; that defendants be barred from any right thereto, and that plaintiffs have such other relief as to the court may seem just.

The defendants demurred to the complaint, (1) for defect of parties defendant, (2) for want of jurisdiction of the court of the subject of the action, (3) for misjoinder of causes of action, (4) for insufficiency of facts stated to constitute a cause of action. The demurrer was overruled with leave to the defendants to answer within 20 days upon payment of $10.00, costs. Within such time the terms were complied with and a second demurrer was served, stating the same grounds as before with the additional ground that the action was not commenced within the time limited by law; the following sections of the Revised Statutes of 1898, being referred to: Section 4221, subd. 4, and sections 4233, 4251, 4207, 4211, and 3918. Such demurrer on motion was stricken out as frivolous, the order in that regard being as follows:

“It is ordered: That the said second demurrer was irregularly interposed for the reason that a former demurrer covering the same grounds with the exception of setting up the statute of limitations (the question of laches having been fully argued on the argument of the first demurrer) which demurrer was overruled with leave given the defendants to answer within twenty days on payment of ten dollars costs;...