Black v. Hurlbut

Orton, J. The appellant was appointed administrator with the will annexed of the estate of Dennis Eyan, deceased, March 15,1810. The county court, upon the application of the respondents as creditors of said estate, on September 5, 1S82, made an order requiring the appellant to file an itemized account of his receipts and disbursements as such administrator, on or before the 19th day of said month, and he filed said account April 30,1883, and the respondents filed their objections to the same February 12, 1884. The appellant afterwards filed his final account as follows: Debit: Personal property claimed by the widow, $61.50; received from sale of pine timber (from certain pine lands in Waupaca county), $800, making $861.50. Credit: Property claimed by widow, $61.50; cash paid to widow, $190; cash as expense of last sickness, $56.50; cash paid as expense of administration, $123.19; making in all $431.19; leaving a balance in his hands of $430.31. With said account the appellant filed a petition stating, in short, that [130] one George B. Earner, between October, 1871, and November, 1873, stole $600 of the funds of said estate, and that he used due care to protect it, and prayed that he might be credited with the loss thereof in his account. On March 11. 1884, the county court disallowed said claim, and declared the appellant chargeable with the balance of said estate of $430.31, and on December 6, 1884, ordered and directed him to pay to the respondents, as creditors of said estate, said amount by a fro rata dividend to each of $68.84. From this last order an appeal was taken to the circuit court. At the May term [1886] of said court the appeal was reached for trial, andino one appearing for the respondents, the court oralty reversed the order of the county court, but no judgment was entered to that effect. At the subsequent term the court set aside such decision, and reinstated said appeal, and finally, after trial and on hearing the evidence, affirmed the order or judgment of the county court, and from such judgment this appeal is taken. The first point made by the learned counsel of the appellant is that the circuit court could not set aside its first decision at a subsequent term. It might be a sufficient answer that no judgment was entered, and the decision only was announced, but the court had ample power by the statute (sec. 2832, R. S.) to relieve the respondents from such decision, on account of their excusable neglect and surprise, which were shown by affidavit. McLaren v. Kehlor, 22 Wis. 300; Seymour v. Chippewa Co. 40 Wis. 62; Lampson v. Bowen, 41 Wis. 484; Whitney v. Karner, 44 Wis. 563; McKnight v. Livingston, 46 Wis. 356. The only other question is on the merits. The circuit court must have found that the appellant did not use due care to protect said moneys from loss by theft, for we will not assume, in the absence of any written findings of the particular facts, that the court found that the money was not stolen. It is unnecessary to review the evidence, which [131] consisted, entirely of the testimony of the appellant; for one fact which appears in the record is sufficient to charge the appellant with the loss, and that is that the moneys ought to have been paid to the creditors of the estate long before the time when it is claimed they were stolen. That neglect is not excused or palliated. It was inexcusable negligence that he retained the money in his custody where it could be stolen. If the estate had been settled and the money paid out to the creditors within the time required by law, the loss would not have occurred. Secs. 3849, 3850, R. S.; 1 Perry on Trusts, §§ 407, 443; Williams v. Williams, 55 Wis. 304; and other 'authorities cited in the brief of respondents’ counsel. By the Court.— The judgment of the circuit court is affirmed.