Tobin v. Tobin (In re Tobin's Estate)

• Decision Date: 11 May 1909
• Citation: Tobin v. Tobin (In re Tobin's Estate), 139 Wis. 494, 121 N.W. 144 (Wis. 1909)
• Parties: IN RE TOBIN'S ESTATE. TOBIN v. TOBIN ET AL.
• Court: Wisconsin Supreme Court

139 Wis. 494

121 N.W. 144

IN RE TOBIN'S ESTATE.TOBIN

v.TOBIN ET AL.

Supreme Court of Wisconsin.

May 11, 1909.

Appeal from Circuit Court, Walworth County; E. B. Belden, Judge.

Proceedings for the special administration of the estate of John Tobin. Petition by Marie A. Tobin, administratrix, and by the guardian ad litem of Cyril C. Tobin to have set aside a previous order of the county court appointing a special administrator to assign a note and mortgage in decedent's name to Joseph Tobin. From a judgment of the circuit court affirming a judgment of the county court setting aside the order, Joseph Tobin appeals. Reversed and remanded, with directions.

This is an appeal from a judgment of the circuit court for Walworth county affirming the judgment of the county court setting aside an order previously made by the county court of said county appointing a special administrator in the estate of John Tobin, deceased, for the purpose of assigning a note and mortgage in the name of John Tobin to Joseph Tobin, on the ground that such order was procured by fraud, and that the county court had no jurisdiction. In 1901 Joseph Tobin resided in Whitewater, Wis., and made a loan to one James Brady of $4,800, and caused the note and mortgage to be made to John Tobin, his son. The mortgage was in the usual form, and ran to John Tobin, his heirs and assigns. Joseph Tobin always held the note and caused the mortgage to be recorded. In 1903 John Tobin, who then resided in Pueblo, Colo., returned to Whitewater, Wis., and died there a short time after his arrival. Shortly after his death a petition was presented to the county court for Walworth county by Joseph Tobin setting up that John died when a resident of Walworth county, leaving him surviving his widow, Marie, and a minor son, Cyril, as his only heirs at law; that Cyril resided with his mother at Whitewater, Wis.; that deceased left no debts unpaid; that Joseph Tobin had loaned to James Brady the sum of $4,800, and that the note and mortgage had been taken in the name of John Tobin, who never had any interest therein; and that the same belonged to Joseph, and prayed for an order appointing a special administrator for the purpose of assigning the note and mortgage to Joseph Tobin. The widow of John Tobin joined in the petition, and his minor son was represented by a guardian ad litem. The court appointed a special administrator in accordance with the prayer of the petition, and assigned the note and mortgage to Joseph Tobin October 5, 1903, in accordance with section 3813a, St. 1898. Thereafter Marie Tobin, widow of John Tobin, petitioned the county court of Pueblo county, Colo., for the appointment of an administrator on the estate of John Tobin, deceased, and on November 13, 1906, she was appointed administratrix. On March 16, 1907, Marie Tobin petitioned the county court of Walworth county, Wis., setting forth the previous proceedings had in said county, her appointment as administratrix, that she was the widow of John Tobin, deceased, and that she and the minor child, Cyril, were the only heirs at law; that John Tobin was a resident of Pueblo, Colo., at the time of his death; that she was also a resident of Pueblo at the time she joined in the petition of Joseph Tobin, and that Cyril was not in Wisconsin at that time; that the note and mortgage were the property of John Tobin when he died; that her assent to the petition of John Tobin had been obtained by false representations; and that she did not know the contents thereof, and prayed that the order appointing the special administrator and all proceedings thereunder be set aside, and Joseph Tobin be required to account. On this petition the county court ordered service of notice of hearing upon Joseph Tobin and the guardian ad litem of Cyril, which was made. Hearing was had, and judgment entered for the petitioner, Marie Tobin, in accordance with the prayer of the petition. An appeal was taken by Joseph Tobin to the circuit court, and an answer filed by him setting up that there was no delivery to, or acceptance by, John Tobin, and no intent to deliver by Joseph, and further alleging ownership of the note and mortgage in Joseph Tobin. The matter was tried, and the court found, among other things, that on the 12th day of March, 1901, Joseph Tobin made a loan of $4,800 to James Brady, taking his promissory note secured by mortgage of even date; that the money was the property of Joseph Tobin; that the note and mortgage have remained in the physical possession of Joseph Tobin since their execution, except during such time as the mortgage was with the register of deeds of Walworth county; that the note and mortgage were taken in the name of John Tobin, deceased, and stood in his name at the time of his death; and that such mortgage ran to John Tobin and his heirs and assigns; that during the lifetime of John Tobin Joseph Tobin collected the interest on the note for the years 1902 and 1903, and remitted the same to John Tobin, who accepted it; that after the death of John Tobin Joseph Tobin collected the interest for the years 1904 and 1905, and has never accounted for it to the estate of John Tobin, deceased; that John Tobin never knew of the existence of the note and mortgage in his lifetime, and never claimed any title thereto; that Marie Tobin was not advised of the facts in the matter at the time she joined in the petition of Joseph Tobin, and was not informed that the title to the note and mortgage had vested in her husband and remained in him at the time of his death; and that she was misled by the concealment and misrepresentations of the facts, and the legal effect of the facts and proceedings had in the county court. The court found as conclusions of law that the order of the county court vacating its former order appointing a special administrator for the purposes specified was proper, and that when Joseph Tobin recorded the mortgage, the title thereto, and the debt thereby secured, passed beyond his recall or control, and that the title to the note and mortgage vested in John Tobin at the time they were executed and delivered by Brady; that the recording of the mortgage was a sufficient delivery and acceptance by John Tobin, that Marie Tobin was not estopped from bringing the proceedings,...