Wiesmann v. Daniels

WiNSlow, J. There are but two questions in the case: (1) Was the petitioner entitled to apply for the appointment [243] of an administrator? and (2) Was the demurrant entitled to appear and resist the application ? 1. A mere stranger, having no interest in the estate or its .administration, cannot move the court for the appointment of an administrator. Stats. 1898, secs. 3807, 3808. This is elementary. The only capacity in which the petitioner claims to be entitled to appear is as a creditor of the estate. His petition, however, does not show him to be a creditor. His claim is for services rendered to Bams as administrator, .and, as such, is a claim against Barns personally, to be by him charged against the estate in his hands upon his accounting, if the outlay be proper and reasonable. McLaughlin v. Winner, 63 Wis. 120, 23 N. W. 402; Miller v. Tracy, 86 Wis. 330, 50 N. W. 886; Schouler, Ex’rs (2d ed.) §§ 256, 544. No exceptional circumstances, such as insolvency of the administrator, are alleged, which have sometimes been 'held to justify a court in ordering payment out of the estate directly to the claimant. 2. We can entertain no serious doubt that the demurrant was so far an interested party in the proceeding as to entitle 'him to appear and oppose the application. It appears on the •face of the petition that he is in possession of a tract of land under some claim of right, which the petitioner claims should 'be sold by the- proposed administrator as a part of MeKune’s estate,, thus creating a cloud upon the title. The application was, in effect, the first step in a proceeding in rem; the res being the land occupied and claimed by the demurrant. His interest in such a proceeding is very substantial and direct. By the Court. — The order and judgment appealed from ¿are both affirmed.