Shove v. Shove

Cassoday, J. It is admitted that the policy was made payable to the plaintiff merely as collateral security. This being so, the plaintiff can have no right to it except as a subsisting security. If the deceased, prior to his death, fully paid to the plaintiff all the indebtedness for which the latter held the policy as collateral, security, then it is manifest that the policy constituted a part of the estate of the deceased. The plaintiff claims that such indebtedness was not all paid. The defendant, as legatee, contested such claim. But we assume that her rights as legatee were subject to the payment of any debts against the estate. This is [429] the.rule at common law, as well as by our statutes. Union Nat. Bank v. Hicks, 67 Wis. 189. We assume that the same rule exists in Dakota. If there are creditors of the estate, then certainly the estate must be represented in the case before its assets can be disposed of by judgment. Even if there are no debts, yet the policy did not at once and directly, upon the death of the testator, vest in the defendant, as the legatee named in the will, but in the executrix as such, or, in case she fails to qualify, in an administrator with the will annexed, by^operation of law, subject to distribution, as in case of intestacy. Melms v. Pfister, 59 Wis. 192, and cases there cited. In any event, upon the facts stated, the court could not properly dispose of any portion of the assets of the estate without its legal representative being a party to the proceedings. The difficulty is in attempting to administer a Dakota estate, without making the legal representative of that estate a party. When, upon the trial, such appears to be the condition of things, it becomes the duty of the court to order such necessary party to be brought in for the due protection of such estate. Sec. 2610, R. S.; Carney v. Gleissner, 62 Wis. 493; Wilde v. Paschen, 67 Wis. 95. The court, having directed a verdict in disregard of such duty, properly corrected it by setting aside the verdict and making the order mentioned. Objection is made because the court did not limit the time within which the qualified representative of the estate should be made a party. But where there is unreasonable delay in the case of such indefinite stay, the remedy is to apply to the trial court, which, in that regard, is invested with discretionary powers, for a modification or vacation of such order. Parmalee v. Wheeler, 32 Wis. 430; McDonald v. G. B. & M. Canal Co. 42 Wis. 335. A defendant who is made a party is not necessarily to be subjected to costs, when the court sets aside a verdict for want of other necessary parties. The question as to the right [430] of the beneficiary named in the policy, as against the right of a legatee named in a subsequent will of the assured, argued by counsel, does not arise, since the beneficiary named merely held as security. By the Court. — • The order of the circuit court is affirmed.