Creamer v. Ingalls

Cassoday, J. It is contended on tbe part of the appellant that the county court had no jurisdiction to set aside the conveyances to Mm of the real estate by the devisees, even though the same were procured by his false pretenses and fraud. Assuming- that to be so, still the question would remain whether that court did not have power, by the order of February 6, 1892, to set aside and revoke the order of final distribution made by the same couft, May 20,1890, and to require the appellant, as administrator with the will annexed, to account. Upon the repeated decisions of this court, we are constrained to hold that it did have such authority, upon the showing made. Brook v. Chappell, 34 Wis. 405; Newman v. Waterman, 63 Wis. 612; Estate of Leavens, 65 Wis. 440; Beem v. Kimberly, 72 Wis. 343; Frawley v. Cosgrove, 83 Wis. 444. This court has frequently sanctioned a broad equitable jurisdiction in the matter of estates in county courts. Ibid. The several legatees and devisees all lived at great distances from the place of administration and where the property was situated, and none of them appear to have had any information respecting the same, except such as they acquired from the appellant. As such administrator, he had been intrusted by the county court with the possession and control of the personal property, amounting to more than $2,000. Whatever may be his relation to the real estate, he was certainly the sole trustee of the personal estate, 'which in equity was the property of the petitioners, subject, however, to the payment of legitimate debts. . Such being the .relation between them, the petitioners had the right to rely implicitly upon Ms representations and statements respecting the situation, condition, and value of the estate. The law imposed upon him the duty of a full, voluntary, and truthful disclosure to them of such situation, condition, and value. According to the petition,— which must be taken 119 •as true for tbe purposes of this appeal,— be not only failed to make such disclosures, but by false representations and pretenses induced the legatees and devisees to transfer, -assign, and convey to him the entire estate, both real and personal, for about one third its value. In such a case the burden is upon the trustee to show that the oestuis que trust-■ent knew at the time all the facts relating to the value of the property and their rights therein. Leach v. Leach, 65 Wis. 284; Davis v. Dean, 66 Wis. 100; Parry v. Parry, 80 Wis. 122; Gandy v. Macaulay, 31 Ch. Div. 1. While we do not commend the practice ■ of resorting to a demurrer after a trial upon the merits, yet we are clearly of the opinion that the petition states a good cause of action, and that the demurrer thereto was properly overruled. By the Court.— The order of the circuit court is affirmed.