Portz v. Schantz

Gassoday, J. 1. The certificate of acknowledgment of the mortgage appears upon its face to have been' executed on the day found by the court, and which was the same as the date of the note. Such, certificate was, at least, presumptive evidence that the note and mortgage were executed and delivered at that time. Smith v. Allis, 52 Wis. 337; Pereau v. Frederick, 17 Neb. 117. The cancellation of the stamp bears the same date. These support the finding upon this fact, and no exception is taken thereto. The mere fact that an earlier date appears at the commencement of the mortgage is immaterial, and constitutes"no variance; especially as the complaint nowhere refers to the date of the mortgage as descriptive. 2. It is said that the .plaintiff failed to prove title to the note and mortgage. He claims such title under and by virtue of the following papers, proceedings, and transfers in the record, and undisputed: April 18, 1868, the mortgagee, Joseph Schantz, made his last will and testament, wherein he gave all his property to his wife, Anna Maria Schantz, also named therein as sole executrix; subject, however, to the payment of his debts, funeral expenses, and a legacy of $500 to a daughter. June 11, 1870, Joseph Schantz died, without having surrendered or assigned the note and mortgage. November 26,1870, the will was filed with the probate judge. May 8,1871, the requisite petition of Adam Schantz for the probate thereof was filed in the probate court. Thereupon, and on May 8, 1871, it was in effect ordered by said probate judge that proof of said instrument, and all other matters pertaining to the granting of administration of said estate, be heard before him May — 504 — 31, 1871, at 11 o’clock a. m., and it was thereby further ordered that notice thereof be given to all persons interested, by the publishing of a copy of said order for three weeks successively, prior to said day of hearing, in a weekly newspaper named. The affidavit of the printer of said newspaper, sworn to and filed with said probate judge May 31, 187Í, was to the effect that said order had been “published in said newspaper for-successive weeks, commencing on the 9fch day of May, 1871.” May 31,1871, such hearing was had, and thereupon it was ordered and adjudged that said will be, and the same was thereby, admitted to probate, and the said Adam Schantz appointed administrator of said estate upon giving the requisite bond; and allowing six months to creditors to present and prove their claims against the estate, and one year for the payment of debts and légacies and the settlement of the estate, with other directions usually contained in such order. That order recited, among other things, that it was made pursuant to the order of May 8, 1871, and the affidavit “showing that the notice required by said order to be given” had “ been duly published as ordered, being filed.” Upon the same day the administrator gave his bond and qualified, and letters of administration were issued to him. The real estate was appraised at $3,500, and the personal estate, including the note and mortgage, at $521.50. September 2, 1871, the county judge fixed December 2, 1871, as the time for hearing and adjusting claims against the estate; and the notice thereof was published for four successive weeks, commencing September 5, 1871. Such proceedings were thereupon had in said probate court in said matter, that October 26,1871, said court assigned and decreed unto the said Anna Maria Schantz all of said estate, both real and personal, in pursuance of the provisions of the will; subject, however, to the payment of the legacy, debts, funeral charges, and expenses of administration. February 24, 1872, the de — 505 — fendant petitioned the said county court to be allowed to prove up certain claims against said estate, in which he mentioned the fact that letters of administration had been granted upon said estate. There- were also in evidence an assignment of said note and mortgage to Jacob Schantz by Anna Maria Schantz, made January 22, 1874; also an assignment by said Jacob Schantz to John Rosenheimer, as administrator of the estate of L. Rosenheimer, deceased, executed April 22, 1882; also an assignment by said John Rosenheimer, as such administrator, to this plaintiff, executed April 4, 1884. These several assignments were all recorded. The contention is that, as the proof fails to shovraffirm-atively that the notice for the hearing of the probate of the will was published for three successive weeks, the court was without jurisdiction, and hence the subsequent order of assignment void. Most of the cases relied upon involved the title to real estate. In some, it affirmatively appeared that the notice, was necessarily short. Here, the question relates solely to the transfer of the note and mortgage constituting a part of the estate of the deceased. The first publication was May 9th, and the hearing was not until May 31st; so there were twenty-two days, exclusive of the day of the first publication. The order directed such publication for three successive weeks. The time allowed was sufficient. The order or judgment of probate recited that the notice was given as required. Every county court is a court of record. Sec. 2448, R. S.; Chase v. Whiting, 30 Wis. 547. The judgment of probate is entitled to faith and credit so far as it relates to the question here involved, unless it was made without jurisdiction. True, we are to look at the affidavit of publication. In that we find that through some inadvertence the number of “successive weeks” is left blank. Since there were three such weeks intervening, we would natu — 506 — rally suppose that there was a publication in each such week as ordered. In that respect “ the record is merely silent,” and the validity of the probate may therefore be presumed after the lapse of so many years. Blodgett v. Hitt, 29 Wis. 169. Besides, the court had power to appoint a special administrator without notice to any one. Sec. 3810, R. S. The statute, moreover, provides that “ such special administrator shall have power to collect all the goods, chattels, and credits of the deceased, and, with leave of the court, . . . may for such purposes [as therein mentioned] commence and maintain actions as an administrator, and sell such personal property of the deceased as the court may direct.” Sec..3811, R. S. Here, the transfer of the note and mortgage and other personal property to the widow was made in pursuance of the will, by order of the county court, and the action or delivery by the administrator. For the purpose of making such transfer of the note and mortgage we think the administrator in question must be regarded as having at least the powers of such special administrator. The legal title of the note and mortgage was certainly in him, as against the debtor and mortgagor. No creditor or other person having any claim upon the estate of the deceased is here contending. The defendant is in no way interested in the ownership of the note and mortgage, except in procuring a valid discharge and satisfaction upon his payment of the judgment. There is another reason why this defendant should not, after the lapse of fifteen years, be allowed to question the validity of such transfer. The note and mortgage were included in the inventory, and appraised as a part of the assets of the estate. They were assigned to the widow by the order of the county court. Within four months after the making of that order, the defendant petitioned that court for the allowance of certain claims against the estate, and therein asserted that “ he did not know until quite recently — 507 — that letters of administration bad been granted on tbe estate of said deceased.” He lived near bis father. He must have known of bis death. He knew tbe note and mortgage had not been surrendered up to him, nor discharged of record. These facts, 'with the confession that he knew such letters of administration had been granted, are sufficient to charge him with knowledge of the. making of such assignment by the court. It is true that his application was denied. But it was an appearance in the case, and if he was “ aggrieved by any act of the county court,” he had his remedy by an application to the circuit court for the allowance of an appeal at any time within one year after the act complained of. Sec. 4033, B. S. Such appearance and opportunity of contest would seem to be sufficient to estop the defendant from questioning the validity of such transfer in a case like this. Grantier v. Rosecrance, 21 Wis. 488; O'Dell v. Rogers, 44 Wis. 136. Other objections to such assignment relate to matters which in no way concern the defendant as mortgagor and debtor to the estate, and that is the only capacity in which he here appears.- Besides, such other objections go merely to the regularity of the proceedings, and they are not open to attack collaterally. 3. The mere fact that the defendant’s father casually borrowed of him twenty dollars, four years before his death, is not such evidence of the payment of that amount upon the note and mortgage as will justify us in disturbing the findings of the trial court. No do we feel called upon by the evidence to disturb such findings merely because the court did not allow the defendant twenty-five cents more a day for his services. 4. We think the court properly refused to allow, as payment upon the note and mortgage, the services of the defendant in helping to take care of his father in his last sickness. There was no proof to sustain it as a payment. — 508 — It was not available as a counterclaim. Carpenter v. Murphey, 57 Wis. 541. The statutes prescribe the methods and tribunal for the allowance of claims against the estates of deceased persons. Ibid. The defendant understood this when he presented his petition to the county court. 5. We cannot disturb the judgment because the court did not find that there was a larger amount due upon the note and mortgage. It was a question of fact for the trial court,, and we accept its findings as sustained by the evidence. 6. We cannot disturb the judgment for the disallowance of attorney’s and solicitor's fees. Each party claimed more than he was entitled to. It is a case in equity. In all such “equitable actions, costs may be allowed or not to any party, in the discretion of the court.” Subd. 7, sec. 2918, R. S.; Mowry v. First Nat. Bank, 66 Wis. 539, 550. We find no warrant for saying that there was any abuse of such discretion. By the Court.— The judgment of the circuit court is affirmed on both appeals.