Oakes v. Estate of Buckley

Tatloe, J. The appellant alleges as error that the appointment of the administrator de bonis non was wholly void for want of jurisdiction in the county court to make the appointment, for the reasons that the record shows the estate of Buckley had been fully settled, the estate distributed, and the administratrix of the estate discharged of her trust, several years before the application for the appointment of the administrator de bonis non was made, and that no cause is shown for such appointment, admitting that the administration of the estate had not been fully closed. The first objection is [598] not sustained by the proofs. The order introduced in evidence which, it is claimed, shows the fact, only shows that the debts, funeral expenses and expenses of administration had been fully paid, and that there remained in the hands of the administratrix the sum of $328.02 belonging to the estate of the deceased, and a direction that the sum be paid to the heirs of said deceased, and that, upon making such payment, the admin-istratrix be discharged from further trust in said matter. The order does not define who the heirs of the deceased are, or make any distribution of the estate to them, but confers the duty of making the distribution upon the administratrix, and discharges her from any further duty a§ such when she shall have made such distribution. Under this order she should have filed in the county court some proof that she had paid the moneys in her hands to the proper person, in order to have made a final distribution of the estate. For anything appearing in the evidence, the former administratrix of Buckley’s estate has this money still in her hands. This is, in fact, admitted, as she claims to be the sole heir-at-law of the deceased, and as such claims the money. But she fails to show any adjudication of the county court that she is such sole heir, or any award to her of the estate of said deceased as such heir. It does not appear, therefore, that the estate of Buckley had been finally settled and distributed when the application was made for the appointment of an administrator de 'bonis non. The other objection is, that, if the estate had not been fully settled and distributed to the hqirs, then it appears there was an administratrix of such estate at the time of the application, and there is no proof that such administratrix had been removed, that she had resigned, or had in any other way become disqualified to hold the office. We think it is a sufficient answer to this objection that, as the record does not disclose the reason for the appointment, it must be presumed that the appointment was for some good cause in the law. The evidence [599] shows that the former administratrix had remarried, and this fact would furnish sufficient ground for appointing an administrator de bonis. See section 13, ch. 99, R. S. 1858; Tay. Stats., 1213, § 13. The record also discloses that the appointment, was made by the mutual consent of all parties interested, and Mary Buckley, widow of the deceased, and administratrix, claims that she is the only party interested except the claimant; and it must be presumed, therefore, that she was present consenting to such appointment. But, in the absence of any evidence showing the appointment void, the order granting the letters, and the letters themselves, are prima facie evidence of the authority to make the appointment. See Bailey v. Scott, 13 Wis., 619; Sitzman v. Pacquette, id., 291; Chase v. Ross, 36 Wis., 267; Wittman, Executrix, v. Watry, 45 Wis., 491; Flood, Adm’r, v. Pilgrim, 32 Wis., 376. The appellant further alleges that the evidence shows that 'the plaintiff’s claim was barred by the statute of limitations; and upon this point he invokes the six-year limitation and the shorter limitation for presenting claims against the estates of deceased persons. We think neither objection is good. The plaintiff’s claim arises out of the breach of Buckley’s contract to convey the lands described in his contract to the plaintiff as therein provided. Buckley had not agreed to convey until the money was due and payable, audit did not become so due until 1871. At that time Buckley had been dead for several years, and, as is claimed by the defendants, his estate had been settled and the administratrix discharged. The plaintiff having been put into possession under his contract of purchase, and holding the undisturbed possession, he could . not have maintained any action against Buckley upon the contract until the time arrived when he was to pay the balance of the money and have his deed. See Diggle v. Boulden, 48 Wis., 477. At that time it is probable that by making a tender of the money due he could have rescinded the contract,surrendered the possession, and recovered the money he [600] bad paid thereon, of Buckley or his personal representatives, had they failed to give him a good title to the lands; and in this view of the case six years would not have expired from the time his right of action might have accrued to the time of his presentation of his claim to the county court for allowance. But as the plaintiff was in possession of the land under his contract, and remained in the quiet possession, no cause of action would accrue to him as against Bxickley or his representatives to recover back the purchase money paid for the land, until he was evicted therefrom by some one having a title paramount to .Buckley’s title; and the evidence shows that he was not finally evicted until April 1, 1875. At this last date the right of action in favor of the plaintiff became perfect as against the estate of Buckley, and not before. Though the plaintiff might have had his right of action when he became entitled to a deed under his contract, by making á tender of the balance of the purchase money and surrendering the possession to his vendor, he was not bound to surrender such possession, but might rely upon the contract of his vendor to make his title good, and hold the possession until he was evicted by the real owner. Noonan v. Ilsley, 22 Wis., 27; Mecklem v. Blake, id., 495; Ludlow v. Gilman, 18 Wis., 552; Horton v. Arnold, 18 Wis., 212; Taft v. Kessel, 16 Wis., 273-8; Diggle v. Boulden, supra; McIndoe v. Morman, 26 Wis., 588. The plaintiff’s cause of action did not in fact accrue until April 1, 1875. The record shows that no order had been made by the county court limiting the time within which all claims and demands against the deceased should be presented for examination and allowance, until the 12th of July, 1875; and that order limited the time for presenting claims against said estate to six months after that date. The record does not show when the claim was in fact presented for allowance; but there is an order, bearing date June 12, 1876, which recites the fact that the claim had been theretofore filed, and as no objection was made either in the county or circuit court that it [601] bad not been filed witbin tlie six months fixed by said order, we must presume it was filed within that time. The only other objection urged against the. judgment is, that the court erred in refusing to permit the defendants to show that the plaintiff, whilst in possession of the lands under his contract, had cut and removed therefrom large quantities of timber, and that the value .of the timber so removed was a much greater sum than had been recovered against him by the real owner in the action of ejectment for rents, profits and damages. We do not think this was error. The evidence having disclosed the fact that Buckley was not the owner of the lands, he liad no right to the timber growing thereon, and, if the real owner failed to recover the value of the timber taken therefrom by the plaintiff,' or if he, without consideration, released his claim against the plaintiff for damages sustained by reason of the cutting and removal of such timber, we are unable to comprehend how that would give Buckley or his representatives the right to recover the value of such timber of the plaintiff. We find no error in the record and proceedings, and the judgment must be affirmed. By the Court. — The judgment of the circuit court is affirmed.