Israel v. Silsbee

LyoN, J. It is admitted, in behalf of Mrs. Silsbee, that her grandson, MaximiTlian D. Israel, the respondent, was the owner of an undivided seven fifty-fourths part of lot 3, in block 103, in the city of Madison; that she acquired the title to that interest by her purchase thereof at the guardian’s sale; that the consideration which she agreed to pay therefor was $1,555.55; and that she paid to the guardian on account of her purchase, including interest, but $506.98. The balance of the purchase money — $1,180 — she retains to satisfy her demands against the estate of Mrs. Israel, pursuant to the orders of the county court. It is admitted, in behalf of the respondent, that the guardian’s sale was regular and valid, and that his interest in lot 3 passed to Mrs. Silsbee by the guardian’s deed thereof to her. But the respondent claims that the orders of the county court, by virtue of which she retains more than two thirds of the purchase money, are invalid, and he has instituted this proceeding to vacate and set aside such orders, to the end that he may recover the unpaid balance in her hands. It would seem, therefore, that •the proceedings in the administration and settlement of the — 228 — estate of Nicholas Smith are not material to the determination of this appeal. The vital question is, Was it competent for the county court, in the guardianship proceedings, to adjust the claim of Mrs. Silsbee against the estate of her deceased daughter, and order the same paid out of the proceeds of the sale of respondent’s land? Before proceeding to the consideration of this question, it will be convenient to dispose of two preliminary propositions maintained by counsel for Mrs. Silsbee. These are (1) that the respondent has been guilty of such laches in commencing this proceeding as to bar his right to assail the orders of the county court for the payment of Mrs. Silsbee out of the proceeds' of the sale; and (2) that by accepting the money paid to the guardian pursuant to such orders, he has estopped himself from attacking the orders. As to the first proposition, it is sufficient to say that the respondent commenced this proceeding within a reasonable time after he became of age, and that the county court may at any time, in furtherance of justice, revoke an order which has been irregularly made. In re Fisher, 15 Wis., 511. This rule, subject to certain qualifications, has been frequently asserted by this court. This case is not within such qualifications. Betts v. Shotten, 27 Wis., 667; Archer v. Meadows, 33 Wis., 166, (see opinion by Dixon, C. J., p. 172). We conclude that the respondent did not lose his right to the relief prayed by delay. The other proposition is negatived by the case of Mohr v. Tulip, 40 Wis., 66. It may be that by receiving from the guardian the proceeds of the sale in his hands, the respondent estopped himself to question the validity of the sale. That is not determined. But admitting the sale to be valid, the money belonged to him in any event. He but received his own. It would be a strange application of the doctrine of estoppel to hold that unless he left the money, which was indisputably his, in the hands of his guardian until he established his right to the balance of the pur — 229 — chase money, he would lose his right to recover such balance. The above propositions being negatived, the question first above stated (which will now be considered) becomes the controlling question in the case. • Counsel for Mrs. Silsbee seek to uphold the jurisdiction of the county court to make the order in question, by maintaining that she was the guardian of her daughter, Mrs. Israel, and that the court has jurisdiction to state accounts between guardian and ward. And they maintain, further, that the court may exercise the same power after the death of Mrs. Israel, in the guardianship proceedings to which her son and heir at law is a party, although there has been no administration of her estate. It does not appear that Mrs. Silsbee ever gave bond as guardian of her daughter. If she was the guardian of Mrs. Israel, it was by virtue of the following clause in the will of her late husband: “ It is my wish that my wife should have the care, custody, and education of my children until they shall severally'arrive of age, and so long as she shall clothe, educate, and support them without charge to them. I do hereby will and bequeath, to my said wife, Buth Smith, for that purpose and on that condition, the use, rents, issues, and profits of all my estate, of whatever nature, after the payment of my debts and the bequest to my mother aforesaid.” In her petition to the county court for a settlement and adjustment of her accounts, she styles herself the testamentary guardian of the heirs of Nicholas Smith. If Mrs. Silsbee was not the guardian of Mrs. Israel, or, being such guardian, if her claim against the estate of Mrs. Israel does not pertain to guardianship matters, it is not claimed that the county court had any jurisdiction to order her claim paid out of the proceeds of the sale. If she is only a general creditor of the estate of Mrs. Israel, she must pursue the remedies prescribed by statute to enforce pay — 230 — ment of her claim. If she proceeds in. the county court, her first and indispensable step must be to procure the appointment of an administrator of Mrs. Israel’s estate. It becomes important, therefore, to determine the nature of her claim, and what are her relations in respect to it towards the estate of her deceased daughter. We gather from the testimony that the claim of Mrs. Silsbee, allowed by the county, court, consists of the following items: $200 advanced to her in 1862 when she was starting for California; $200 sent to her in 1863, which reached California after her death; and $780 for the'board of herself and the respondent (who was then an infant) for three years. The last item accrued between 1859 and 1862, during which time Mr. Israel was absent from his family. Mrs. Israel became of age in 1861; hence a large portion of this claim accrued after she became of age. That portion had no relation whatever to guardianship transactions. It arose out of transactions between parties, each of whom was mi juris, and in respect to it only the ordinary relation of creditor and debtor exists. Yery clearly the county court had no jurisdiction to include that portion of Mrs. Silsbee's claim in any adjudication it might make concerning the alleged guardianship. As to the balance of the claim —• that portion which accrued before Mrs. Israel became of age — there are two difficulties in the way of its allowance, either of which we think insuperable: (1) The claim accrued after the marriage of Mrs. Israel, and her husband alone is liable for the board of herself and child, unless she expressly made the amount chargeable upon her separate estate. We find no evidence tending to prove that she did so. (2) By a fair construction of the will of her late husband, Mrs. Silsbee accepted the guardianship of their children on condition that she should clothe, educate, and support them during their minority — 231 — without charge to them. As guardian, therefore, she’ can enforce no claim against the estate of Mrs. Israel for the expense of her maintenance during minority. We thus reach the conclusion that, at most, Mrs. Silsbee is only a general creditor of the estate of Mrs. Israel, and can only enforce payment of her claim in the county court through the process of administration upon the estate of the latter. On the authority of McGonigal v. Colter, 32 Wis., 614, probably Mrs. Silsbee could maintain an action at law against the respondent, as sole heir of Mrs..Israel, on proof of the facts required by the statute (R. ,S., 839, sec. 3277), without first administering her estate. We do not think, however, Mrs. Silsbee is driven to such an action to obtain payment of her claim. The judgment of the circuit court, by fair and almost necessary implication, treats the balance of the proceeds of the sale retained by her as part of the estate of her deceased daughter, so far as the creditors of that estate are concerned. We perceive no valid objection to this. If Mrs. Silsbee can establish her claim in the county court against the estate — she being the only creditor, and the proceeds of the sale constituting the whole estate — it is just and equitable that her claim be paid out of such proceeds without further litigation. Due notice of the administration proceedings in the county court will be given as required by law, and the respondent will have full opportunity to contest the claim. For the security of Mrs. Silsbee, the county court should retain the money which she is required to pay into court for such reasonable time as will enable her to establish her claim (if she can) against the estate of Mrs. Israel, and whatever sum she recovers should be paid therefrom. The time limited by the judgment for the payment into court of the balance of the purchase money having long since expired, the circuit court, in its mandate to the. county court, should appoint some future day for such payment. — 232 — Under the circumstances of the case, we advise the circuit court to grant a liberal time to Mrs. Silsbee in which to make such payment. The views above expressed dispose of the case without reaching the question whether the original orders of the county court in the guardianship proceedings would have been valid had the relation of guardian and ward existed between Mrs. Silsbee and her daughter, Mrs. Israel, and had the claim of Mrs. Silsbee arisen out of transactions pertaining to such guardianship. The general question is, Can the accounts of a guardian be adjusted by the county court after the decease of the ward, in a proceeding to which the guardian and the heir of the ward are the only parties, without any administration of the estate of the deceased ward? This question will not be here determined or discussed ; yet we deem it proper to say that we have given the question some consideration, and, as at present advised, we all incline to the opinion that it must be answered in the negative. Before closing this opinion we desire to acknowledge our obligations to the learned counsel of the respective parties for their very able and interesting arguments, which have been of great service to us in the investigation of the case. By the Gonrt.— Judgment affirmed.