Palmer v. O'Rourke

Marshall, J. According to the facts alleged in respondent’s complaint there is no room for reasonable controversy but that the right to the property in question vested in respondent as administrator of the estate of Mary O’Eourke immediately upon his becoming such administrator. Upon the death of any person possessed of personal estate the legal title-thereto and the right to possession thereof vests in his personal representative and can only reach the heirs, ultimately entitled thereto, by due course of administration. Therefore in the absence of some sufficient equity in favor of an heir who may have possessed himself of such personalty, the mere510 fact of his having an equitable interest therein as such not being one, the administrator duly appointed to take charge of and administer the estate of which such personalty forms the whole or a part, has an absolute right to recover the value thereof from such heir in case of his having converted the same to his own use. That is so elementary that it need but to be stated, and is a sufficient answer to the argument of counsel for appellant that the complaint fails to state a cause of action because it shows that appellant is entitled as heir to receive one half the residue of the estate of Mary O’Rourke left after the payment of all claims allowed against the estate and the expenses of administration. The main contention of counsel for appellant is that respondent’s claim is barred by secs. 4222, 4234, Stats. 1898. As a basis for applying such sections to the pleading it is claimed that the complaint shows that appellant converted the property in question to his own use when he made the' deposit in the bank October 9, 1894. The allegations on that subject are to the effect that appellant was instructed by Mary O’Rourke to deposit the money in the bank for her and that he deposited the same there in the name of “Mary O’Rourke, or Henry J. O’Bourlce ” and that he was permitted by the bank to withdraw the deposit in two amounts by falsely representing to the officers of the bank that he was authorized to do so. The reasonable inference from such allegations is that the money was either deposited in the name of Mary O’Rourke or in the name of Henry J. O’Rourke as the money of the former. Unless the deposit was so made no pretense to the officers of the bank of authority from Mary O’Rourke to so draw the money would have been required. So construing the complaint in the light of such reasonable inference, as we are bound to do (Emerson v. Nash, 124 Wis. 369, 102 N. W. 921), it does not show any wrongful conversion by appellant at the time the deposit was made, and it is perfectly clear, we may safely say, that the pleader did not intend to charge a conversion as having occurred at that time. [511] It is distinctly alleged in the complaint that $99.87 of Mary O’Bourke’s money was by the defendant wrongfully obtained from the bank within one year before her death and converted to his own use, and that the balance of the deposit was so obtained and converted six days after her death, both conversions occurring more than seven years and less than eight years before the administrator was appointed. As to the first of such wrongful acts the right to recover is clearly barred by sec. 4222 of the statutes pleaded. That section limits the time for the commencement of an action to recover damages for the wrongful detention of personal property to six years after the right of action has accrued. The death of the person to whom the right of action accrues does not extend such time unless such death occurs during the last of the six years. In such circumstances sec. 4234, Stats. 1898, provides that “if a person entitled to bring an action die before the expiration of the time limited for the commencement thereof and the cause of action survive an action.may be commenced by his representatives after the expiration of that time and within one year from his death.” Curran v. Witter, 68 Wis. 16, 31 N. W. 705, limited such section to cases where the death of a person occurs during the last year of his right to commence the action. So it will be seen it does not apply here. As to the act of conversion alleged to have occurred after the death of Mary O’Bourke the sections of the statute relied on by appellant do not apply. There was no person in existence competent to bring an action on account of such conversion till the administrator was appointed in 1904. That situation is governed by sec. 4251, Stats. 1898, providing that “there being no person in existence who is authorized to bring an action thereon at the time a cause of action accrues shall not extend the time within which, according to the provisions of this chapter, *an action can be commenced upon such cause of action to more than double the period otherwise prescribed by law.” The complaint unmistakably shows that this action [512] was commenced within the double time mentioned. There-being no other question that need be considered, the demurrer-was properly overruled. By the Court. — The order appealed from is affirmed.