Winter v. Winter

• Citation: 77 N.W. 883,101 Wis. 494
• Parties: WINTER v. WINTER.
• Decision Date: 10 January 1899
• Court: United States State Supreme Court of Wisconsin

101 Wis. 494

77 N.W. 883

WINTER

v.WINTER.

Supreme Court of Wisconsin.

Jan. 10, 1899.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by James W. Winter against Josephine Winter. There was a judgment for defendant, and plaintiff appeals. Affirmed.

This is an action against the heir of a deceased person, under section 3274 et seq., Rev. St. Wis. 1898. The action was tried by the court. The facts were not in dispute, and were found by the court to be substantially as follows: Both the plaintiff and the defendant are residents of California. The defendant is the widow and heir at law of one W. G. Winter, who died, intestate, December 24, 1892, in San Francisco, leaving estate in California, and also being seised of certain real estate in Dane county, Wis. His estate in California was inventoried in May, 1893, at nearly $71,000, of which nearly $9,000 was personal property, and the balance real estate. Administration was had of his estate in the superior court of the city and county of San Francisco, which is a court of general jurisdiction, having also probate jurisdiction; and the defendant was appointed administratrix of the estate. The plaintiff was a creditor of the estate to the amount of $9,538.75, and duly proved his claim April 5, 1893. At the time of the commencement of this action, the plaintiff was the sole remaining creditor of the estate, except the German Savings & Loan Association of San Francisco, which had a mortgage of $10,000, secured upon the real estate in California by a lien prior to the plaintiff's. The personal estate of the deceased, in California and Wisconsin and elsewhere, is not sufficient to pay the plaintiff's debt, or any part thereof; and all of the real estate of the estate, except that in Wisconsin, is only of the value of $13,296.66, upon which the claim of the savings and loan society is a prior lien to that of the plaintiff. The plaintiff has been unable, with due diligence, to collect any part of his debt in the California probate court, and will be unable to collect the same, or any part thereof, in the Dane county court, or elsewhere. Ancillary administration of the estate of W. G. Winter was had in the Dane county court, and administration was granted June 27, 1893, and an order made limiting the time for the presentation of claims, which time expired January 1, 1894, which order was duly published and proven, in accordance with the statutes; but no claim was filed by the plaintiff in said estate, and said estate was finally closed March 6, 1896, and the administrator discharged. The aforesaid real estate, situated in Dane county, of which the said W. G. Winter died seised, descended to Josephine Winter, as his sole heir at law, and was never in the possession of or under the control of the administrator of the estate, and was not inventoried as a part of the estate in the California court. From these facts the court concluded that the plaintiff was barred from any judgment in this action, by the provisions of section 3844, Rev. St. Wis. 1898, and dismissed the plaintiff's action, from which judgment the plaintiff appeals.

A. G. Zimmerman, for appellant.

Spooner, Sanborn & Spooner, for respondent.

WINSLOW, J. (after stating the facts).

Both the plaintiff and the intestate debtor lived in California, and the debtor owned real estate in Wisconsin. Administration of the intestate's estate was duly had in California, and the plaintiff duly proved his claim there. Administration was also had in Wisconsin, and the plaintiff failed to prove his claim here within the time limited by statute, although notice to creditors was duly given; and the question is whether the plaintiff has become barred by section 3844, Rev. St. Wis. 1898, from bringing an action under section 3274 et seq., Id., against the heir at law, to charge her to the amount of the real estate in Wisconsin which has descended to her from the deceased. It is well settled in this state that, so far as resident creditors are concerned, claims which are not presented as required by section 3844 are forever barred; not only is the remedy cut off, but the...