Eisentraut v. Cornelius

Siebeckeu, T. This is an action in equity by the plaintiff, as administratrix of the estate of Carl Hitzsche, deceased, for a discovery of the property of his estate and for an accounting with the defendants. Since the administratrix alleges her ignorance of the amount, the condition, and the nature of the estate and property claimed to be withheld by the defendants under claim of ownership, she may institute this equitable action in the circuit court during the pendency of the administration of the estate in county court. Though discovery in county courts may be had under such circumstances pursuant to sec. 3825, Stats. (1898), yet the necessity of bringing an action, either at law or in equity, as exigency — 538 — may demand, to enforce delivery or restoration to tlie estate of property discovered, results in such circuity and multiplicity of action that it is in itself sufficient groimds for suing in equity. Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Burnham v. Norton, 100 Wis. 8, 75 N. W. 304. The plaintiff demands that the defendants make discovery and account for any money or property in their possession belonging to the estate of Carl bfitzsche, deceased. The trial court, however, did not proceed to an accounting between the parties, but limited the relief awarded to an adjudication of the amount the defendants were found to have obtained from the estate of the deceased, and entered judgment that plaintiff recover such amount from defendants for the benefit of the estate, without determining defendants’ right to credits for any sums which they claim to have paid to the heirs of the deceased and upon debts and claims against the deceased and his estate. The court suggested that the question of such credits to defendants, if any should be allowed them on the amount they received from the decedent’s estate, could not properly be determined in this action and must be litigated in county court in the settlement of,the estate. Such a course would obviously deprive the parties of the very benefit sought to be gained by this equitable action in the circuit court, namely, the avoidance of a circuity and multiplicity of actions, and a final and complete' settlement of the whole controversy between the parties having an interest in the subject matter of the action. It was held in Gianella v. Bigelow, 96 Wis. 185, 71 N. W. 111, that the jurisdiction of courts of equity “over estates, interests, and primary rights, purely equitable, and to administer equitable remedies, is nowhere lost merely because the interest, right, or remedy grows out of, or is connected with, the estate of a deceased person which is in course of administration.” The circumstances of this case clearly make it a proper one for an equitable accounting in the circuit court, and it is proper that — 539 — -when that court has entertained the cause it should retain it to settle the rights of all the parties interested in the litigation. This necessarily entitled defendants to litigate their claims respecting the allowance of credits for any sums they claim to have paid the heirs of the decedent out of the estate which came into their hands and for any other sums they have properly disbursed in payment of claims against the deceased or his estate. These claims of defendants are appropriately embraced within the issues of the action for an accounting between 'the representative of the estate and the defendants and can be most efficiently and expeditiously tried and determined in this action. The argument is made that such a course of proceeding would involve issues between the defendants and some of the decedent’s heirs who are not parties to the action. As to this the record discloses that the defendant Charles Cornelius avers that he has settled with three of such heirs and that they have released to him all their claims to the estate. This situation presents no obstacle to a full determination of the rights of all these parties arising out of these circumstances. The object of the action is to accumulate and secure the custody of the assets of the estate so that they may be distributed among those rightfully entitled to them. If some bf the heirs have in fact released their rights to the defendant Charles Cornelius and he is found entitled to receive their shares of whatever estate may be found should be distributed, we can conceive of no more appropriate, expeditious, and efficient proceeding than to make such persons parties to this action and to litigate the question of his right thereto, if it is controverted by any interested party; and the court may upon a final accounting require defendants to account to the administratrix for any part of the estate found to he in their possession, and direct them to pay to the administratrix the amount thereof required for administration of the estate and the payment of the amounts found due the other distributees. It would be a — 540 — useless and an idle ceremony to require defendants to turn over to tbe administratrix any property or money which, may be found due them upon distribution of the estate. It is urged that such a disposition of the rights of the parties cannot be accomplished because the administration of the estate in county court is incomplete, and that the circuit court.is therefore unable to ascertain what portion of the estate will be required for the payment of debts and expenses of administration. True, the record is silent as to these facts, but if the administration in county court has progressed to the stage where these amounts are ascertained, then proof thereof can readily be adduced in circuit court to enable it to enter a decree covering the situation, and, if time is required to carry the administration in county court to this point, the circuit court can hold the proceeding in abeyance until such facts may be shown. The circuit court awarded judgment that plaintiff recover from defendants jointly an amount equal to* the total amount of the property that both defendants were found to have obtained from the decedents. This was erroneous. The proof discloses that the property for which recovery is sought was held separately by the two defendants. Under such circumstances, in 'an equitable action for an accounting, the court must ascertain the separate liability of each defendant and award judgment as to each accordingly. As to the issues litigated and determined, the court found that the defendants, by the exercise of undue influence over the minds of Carl Nitzsche and his wife, induced them to transfer and deliver to the defendants all of Nitzsche’s property, including the homestead, of a total value of at least $15,000. The appellants urge as error on this branch of the case, that, after plaintiff had examined them in her behalf concerning communications and transactions they had had with the decedents in the course of which they obtained possession of some property, they were refused an opportunity — 541 — to give their evidence and explanation of such communications and transactions. The defendants were examined as witnesses in plaintiff’s behalf as to their course of dealing with the decedent, and were required to give evidence of communications and transactions through which they obtained possession of the property in question and of the repayment of some specific sums collected by them. This examination covered in general terms all of the property that came into the defendants’ possession, and referred to transactions between them and the decedents involving the receipt and payment of moneys realized out of the securities. "When defendants offered to testify in their behalf and give the details of such communications and transactions covering the negotiations, the court excluded parts as incompetent because they related to personal transactions with the decedents and were not specifically covered by plaintiff’s evidence. They were, however, the details of the transactions concerning which they had been examined by the plaintiff. Under these circumstances such evidence should have been admitted as part of the communications and transactions concerning which plaintiff had first examined them. The import and force of the evidence so offered cannot now be determined from the record. Its exclusion may have been very preju-' dicial, and especially so in view of the conclusion of the trial court that many transactions were not satisfactorily explained by the defendant Charles CJornelius. We are impressed that the court placed much stress upon the want of such explanations 'in arriving at the conclusion that defendants obtained decedents’ property by undue influence, and are led to' the conclusion that the finding of undue influence should not stand as final on the evidence now before the court, but that it should be set aside with directions to find upon this issue after all the evidence the parties may hereafter adduce has been received. Appellants vigorously assail the finding that they received — 542 — tbe sum of at least $15,000 of the property and the estate of Carl Nitzsche. The finding of the court does not specify what property they received, aside from the specification that they received all of his real and personal property. This leaves the finding somewhat indefinite, since there is no finding specifying what property Mr. Nitzsche actually owned when he removed to Neillsville in June, 1901. We are persuaded that the trial should be reopened as to this issue for further consideration upon all the evidence that may be received in the case. It is urged, in view of the fiduciary relation of the defendants with decedents, that the trial court in effect imposed on defendants the burden of disproving the charge of undue influence under its interpretation of the decision of Davis v. Dean, 66 Wis. 100, 26 N. W. 737. The record does not disclose that this burden was so imposed on appellants. The proper application of Davis v. Dean, supra, was considered and explained in Winn v. Itzel, 125 Wis. 19, 103 N. W. 220. We do not deem it necessary to elaborate the subject in view of the full discussion in this last case. Upon the foregoing considerations the judgment of the trial court must be reversed, and the cause remanded with directions that the court proceed to bring in all the parties necessary to a complete determination or settlement of the questions involved in the controversy, that the court proceed to so frame the issues that the rights of all the parties having an interest in the subject of the action may be tried, that the court reopen the case for the reception of such other material evidence as may be produced by the parties and which was not introduced at the former trial, and that it make its findings of facts upon the issues after having received the evidence in the case. By the Court. — It is so ordered.