Steinberg v. Salzman

• Decision Date: 20 April 1909
• Citation: 139 Wis. 118,120 N.W. 1005
• Parties: STEINBERG ET AL. v. SALZMAN ET AL.
• Court: Wisconsin Supreme Court

139 Wis. 118

120 N.W. 1005

STEINBERG ET AL.

v.SALZMAN ET AL.

Supreme Court of Wisconsin.

April 20, 1909.

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

Action by David Steinberg and another against August Salzman and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Action brought by plaintiffs to set aside an administrator's deed, and to bar the grantee named therein, and his wife, of all right, title, and interest in the property conveyed thereby, and for such other relief as might be equitable. One William Steinberg died intestate on July 6, 1878, leaving a widow, and three children by a former marriage of the ages of six, seven, and nine years, respectively. The oldest child, David, conveyed his interest in the premises in dispute to his brother, one of the plaintiffs in this action, his sister being the other. At the time of his death Steinberg was the owner of a farm of 80 acres, and some personal property. One 40-acre tract was wild and uncultivated. The other was cleared and improved to some extent, and had farm buildings thereon, and was occupied as a homestead by decedent and his family. He had been married to his second wife, who is one of the defendants in this action, about four months at the time of his death. About four months thereafter she married August Salzman, her codefendant. A petition was presented by one Herman Kleeman to the county court, reciting, among other things, that it was necessary to sell the real estate of the decedent to pay his debts. A hearing appears to have been ordered upon such petition, and an administrator was appointed, and thereafter an order was entered directing that sale be made, and the property was sold to the defendant August Salzman for $1,300, the appraised value of the farm, which sale was confirmed August 5, 1879. A special guardian for the minor heirs of the decedent was appointed May 20, 1879, and the widow of the decedent and the special guardian of the minors consented to the sale. The administrator's deed was executed August 7, 1879. The personal property was inventoried at $485.92, and thereafter certain property was reported by the administrator as coming into his hands, but not inventoried, amounting to $279.77, making the total personal property $765.69. The homestead 40 was appraised at $1,000, and the other at $300. Personal property was awarded to the widow of the inventory value of $292.80. In the final account rendered by the administrator he reports total receipts of $2,065.69. Of this he reports as paid to the widow $433 for her dower interest in the land sold, and $292.80 for her personal property selection; $45.02 for expenses of administration, and $978.90 for indebtedness. The remainder of $315.97 he reported as cash on hand.

The administrator never paid any of the debts of the decedent. No notice to creditors was ever given, and no accounts against decedent's estate were ever legally allowed by the county court. The property purchased by August Salzman, and he appears to have purchased the personal property as well as the real estate, was purchased on time, and with the understanding that he was to settle with and pay the creditors of the decedent. As a matter of fact he claims to have paid out more money on account of claims than the indebtedness amounted to as reported in the final account of the administrator. The evidence on this point is unsatisfactory, and the proceeding was entirely lawless, both as to the manner of taking care of claims, and as to selling the homestead, which was exempt from payment thereof, and was the property of the minor heirs, subject to the homestead right of the widow. No part of the $315.97 reported in the hands of the administrator was ever paid to the heirs, and the administrator never received such sum of money, but received in lieu thereof the note of August Salzman, which was never paid, except as he claims he paid it by caring for the minor heirs. The two boys worked for him on the farm until they were nearly 21 years of age, and the girl until she was past 18, and none of them attended school, except for a few days. The two younger children can neither read nor write, and the older one can read a very little. The defendants went into possession of the farm under the administrator's deed, and have remained in possession ever since.

The circuit court held, among other things, that gross errors and glaring irregularities were committed in the administration of the estate, which amounted to constructive, if not actual, fraud; that the defendants, aided by the toil of the heirs of William Steinberg, have greatly improved the real estate, thereby enhancing its value several thousand dollars; that the debts of Steinberg were not properly proven, and the price for which the property was sold to pay the same was agreed upon in advance, and no consideration was received by the administrator when he executed the deed; that the fraud was not discovered by plaintiffs until June, 1905; that the real estate was sold for $200 less than its value; that the note for $352.36 given the administrator has never been paid, and that the children of the decedent were raised without any education, and were kept in ignorance of all facts pertaining to their father's estate, and that they had, by their labor for the defendant August Salzman, more than earned the board and clothing furnished them while living with said Salzman. As conclusions of law the court found: (1) The administrator's deed was void; (2) there was no authority in law to sell the homestead to pay debts, and the debts were not legally proven; (3) constructive, if not actual, fraud entered into the sale of the real estate, and the defendant August Salzman was a party thereto; (4) the plaintiffs' right of action was saved under subdivision 7, § 4222, St. 1898, by reason of the fact that the fraud was not discovered until 1905; (5) that in view of the very large increase in the value of the farm it would be inequitable to divest defendant of the title thereto, and that the defendant August Salzman should pay plaintiffs $200, with interest from August 7, 1879, being the difference between the purchase price of the farm, and what it was actually worth, and also the amount of the note given to the administrator, with interest from its date, making a total of $1,586. Among other defenses interposed, the defendants pleaded the following statutes of limitation in bar of the action: Sections 4211, 4212, 4215, 4207, 3918, 4251, 4233, and subdivision 4, of section 4221. They also interposed a counterclaim, asking that their title to the premises in dispute be quieted. Numerous errors are assigned. Those material to a disposition of the case will be referred to in the opinion.

Eberlein & Eberlein, for appellants.

John F. Hooper, for respondents.

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

The finding of the circuit court that gross and glaring irregularities were committed in the administration...