Estate of Leavens

Taylor, J. The learned counsel for the respondent both in this court and the court below have treated this proceeding by petition to set aside the proceedings in the administration of the estate of C. W. Leavens, as an action, and the petition as the complaint therein, and have demurred to the petition as though it were a complaint in an action. This is hardly the nature of the proceeding. It is more in the nature of a motion in an action than of the commencement of an action. The demurrer of the respondent may, however, be treated as an objection on her part against granting the motion of the petitioner and awarding him the relief asked for. The material questions in the case are, perhaps, — 446 — as well brought to the notice of the court in the form of a demurrer to the petition as in any other way. The learned counsel for the respondent urges that the facts stated in the petition do not entitle the petitioner to the relief asked, or to any other relief in the county court, mainly upon the ground that the county court has lost all jurisdiction over the matter of the estate of said deceased, because it had made a final order for the distribution of the estate, and the estate has been delivered to the parties entitled to the same by virtue of such order; and whether the estate has been distributed to the persons rightfully entitled to the same, or to persons who have no right to it, under the laws of the state, can make no difference. The counsel further claim that the county court has exhausted its jurisdiction over the subject matter of the estate, and the rightful owner must seek his remedy, if he has any, in a court of equity or some other appropriate action in some other court. It is claimed that the county court is entirely incompetent to correct any error it may have fallen into through the fraudulent suppression of the real facts in regard to the estate administered. We are not prepared to limit the power of the county court by any such arbitrary and unjust restriction. This court has repeatedly held that the county court may set aside its orders and proceedings, when they have been irregularly entered, or when they have been obtained through . the fraud of parties obtaining the same. See In re Fisher, 15 Wis. 511; Betts v. Shotton, 21 Wis. 667; Archer v. Meadows, 33 Wis. 166; Baker v. Baker, 51 Wis. 538, 548; Brook v. Chappell, 34 Wis. 405. We seen no reason for limiting this jurisdiction except, as was done in the case of Betts v. Shotton, supra, so as to prevent disturbing rights which had become confirmed, under the order or proceedings asked to be set aside, by the running of the statute of limitations in favor of those claiming under them. The petition in this case, if true, shows that there has — 447 — been, a wrongful administration of the éstate, and a direction of the court to deliver the estate to persons who have no right to any part thereof. How is the rightful owner to obtain the estate ? The learned counsel for the respondent says he may bring an action in equity or some other action in the circuit court to compel the administrator to account to him tor his wrongful administration of the estate, and, under proper allegations, he may make the recipients of the estate parties to,such action; and cites Stronach v. Stronach, 20 Wis. 129. It is probable such an action might be maintained, but the fact that such action may be maintained is no reason for holding that the' county court cannot and ought hot to remedy the wrong done by its own order. In In re Fisher, 15 Wis. 511, 521, after an elaborate argument by eminent counsel, this court sums up the whole case by saying the following points were unanimously resolved by the court. One was this: “ (3) The county court, sitting as a probate court, may, at any time, in furtherance of justice, revoke an order which has been irregularly made or procured by fraud.” The propriety of that determination by this court, as limited in the case of Betts v. Shotton, supra, has never been questioned, and it has been reiterated in the opinions of this court in the several cases above .cited. A like rule has been adopted for the probate courts of New York (see Campbell v. Thatcher, 54 Barb. 382, 386; Pew v. Hastings, 1 Barb. Ch. 452; Proctor v. Wanmaker, 1 Barb. Ch. 302; Sipperky v. Baucus, 24 N. Y. 46; Vreedenburgh v. Calf, 9 Paige, 128; Skidmore v. Davies, 10 Paige, 316); also by the courts of Massachusetts (see Waters v. Stickney, 12 Allen, 1; Richardson v. Hazelton, 101 Mass. 108). In some courts this proceeding to set aside an order of the probate court which has been irregularly or fraudulently made, is treated as a bill of review in such court. See Mauro v. Ritchie, 3 Cranch, C. C. 167. It is urged that the county court has no power to compel — 448 — the respondent to return to the county court the money received by her under its order of distribution. For the purpose of this case it is unnecessary to determine what power the county court has to compel the refunding of money belonging to an estate being administered in that court, which has, by the fraud or mistake of the administrator, been ordered distributed to a person not lawfully entitled thereto. The county court can undoubtedly make an order to that effect, and, if the money or property is still in the possession of such1 person, enforce such order under sec. 2460, E. S. The court, under the authorities cited, certainly has the power to vacate the order procured by the fraud of the administrator; and when that is vacated, there would seem to be no reason why the administrator may not be required to again render his account, and, when such account is rendered, why another order of distribution may not be made to such persons as shall appear to be entitled to the same. In order to procure such action on the part of the court, it was highly proper that the persons who claim the estate under the order of distribution should be notified of the application of the petitioner, as they are vitally interested in maintaining that order unreversed. Whether the specific relief claimed against the respondent and her children can be given by the county court is wholly immaterial. They were entitled to notice of this application, and the petition should not be dismissed as to the appellant because it may demand a relief which the court may not have the power to grant. It is also insisted that the petitioner is not a party to the proceedings for the administration of the estate of his alleged father, and has therefore no standing in court to set aside the proceedings in such administration. WThile he is not bound by the order of distribution made in such proceedings, on account of his minority and want of proper notice of it when it was made, it is not clear that the ap — 449 — pointment of the administrator was void as to him, though a minor. The statute does not in express terms requirethat a general guardian or a guardian ad litem shall be appointed for the minor heirs, to appear for them on the hearing upon the application for the appointment of an administrator of án estate.- The statute in force when the administrator was appointed simply required the county judge to cause notice of the application and the time and place of hearing thereof, “ to be published fqr three successive weeks in such newspaper as he may direct, or to be personally served on all persons interested for such length of time before the day fixed for hearing as shall be deemed reasonable.” See 2 Tay. Stats. 1219, sec. 20. There is no allegation in the petition that the notice required by the statute was not given before the appointment of the administrator was made. On the contrary, the allegation is that he was duly appointed. The order appointing "the administrator may be valid, though the order. of distribution may be void because the petitioner was not notified of the making of the same. The rules prepared in 1879 for the practice in the county courts do not direct that a guardian ad Utem shall be appointed for the minor heirs, on the hearing of an application, for the appointment of an administrator. See County Court Rules, YII, IX, p. 55. It is at least questionable whether another administration can be had of the estate in question until the present administrator is removed, and another appointed in his place. However that may be, we think it highly proper, before attempting to- procure a new administration, to have the proceedings already had in the case set aside, so far, at least, as they prejudice the rights of the ' petitioner. If it be admitted that he has a remedy for the wrong done him by obtaining the fraudulent order for the distribution of the estate in some other court, it seems to us that' he has chosen the more appropriate remedy by — 450 — going into tlie court having the custody of the estate of the deceased, and asking that court to vacate its order fraudulently obtained, so that it may do justice to him. in the court specially created for that purpose. We have no doubt he is so much a party to the. proceeding, if he chooses to make himself such, as to be entitled to present his petition and ask to have the proceeding vacated. It is also said that he may have a remedy on the administrator’s bond for his maladministration of the estate. We have grave doubts whether, under our statute, he can maintain any action upon the bond to recover his share of the estate until he obtains an order of the county court directing some part of it to be paid to him. See subd. 2, sec. 4014, R. S. 1878. In an action upon the administrator’s bond, it is not entirely certain that the order made by the county court directing the estate to be paid to other parties than himself would not defeat his action, or that he would be permitted, in such action, to show that such order was void and that the estate should have been distributed to him. However that may be, it is more appropriate to get rid of such void order first, before bringing such action. We think the circuit court erred in sustaining the demurrer to the petition. By the Gourt. — • The order appealed from is reversed, and the cause is remanded with directions to the circuit court to affirm the order made by the county court.