Kellogg v. Stroud

Ejeewiw, J. Several contentions are made for reversal which, so far as material to our decision, will be considered. 1. It is insisted that under the sixth item of the will, set out in the statement of facts, it was clearly the intention of the testator that her son, Drayton A. Hillyer, might annually use such portion of the corpus of the estate as might be necessary to give him all the comforts of life, and for such purpose he might draw upon the corpus, and if necessary during his life consume it, without the intervention of the executor named in the will or any action on the part of the county court. And it is claimed that the evidence and findings establish that D. A. Hillyer might have expended the corpus of the estate for the reasonable comforts of life, or at least a large portion of it, in addition to the income from the [15] estate of his mother, had he complied with the provisions of the will. This may well be, as said in the opinion of the court below, and it is regrettable that he did not have an executor appointed after the one named in the will refused to act, or apply to the county court from time to time upon a proper showing and have the annual amount which he might spend out of the corpus under the provisions of the sixth item of the will determined and fixed by order of the court, in case of no acting executor as provided by the will. But it, is claimed that in the absence of an executor who had power under the will to exercise discretion as to the amount of corpus which might be expended by D. A. Hill-yer under the will or any determination of the matter by the county court, Hillyer was still entitled to expend the corpus of the estate, if necessary comforts required it. It is clear from the will that only $300 of corpus could be expended by D. A. Hillyer in any year, and it is also clear that a determination of the amount of such expenditure should be first made by the executor to be associated with him. Since no determination was made by the executor or by the court that any sum be expended out of the corpus, no authority was conferred on Hillyer to expend or convert any part of the corpus. The use only of the residue of the estate of the testator was given to him by the will in addition to the real estate in fee and the provision in the sixth item referred to. The burden of proof was upon Hillyer to show that the money was properly expended in accordance with the terms of the will. The learned trial court, in a written opinion in the record, said: “It is perhaps true that Mr. Hillyer’s income was so small during that term, except for the two years that he was city clerk — and I think that his whole income, including his earnings, must be considered in determining whether he coiild have for support any part of the principal — that his. [16] co-executor, bad be bad one, or tbe court, bad be applied to it, would have allowed bim, upon showing bis necessities, some amount, perhaps tbe full $300, of the principal sum during a part,- perhaps all, of these years; and it is possibly true that tbe whole $4,128.85 in bis bands as executor in 1884 would have been awarded to bim for bis support bad one of these courses been adopted. It is regrettable that be did not sbe fit to take one of these courses, if tbe facts are that be used tbe principal sum involved for bis support and that bis necessities required such use of it.” . . . “It hardly helps to construe tbe will as intending that Mr. Ilill-■yer should be given allowance from tbe principal sum if bis situation rendered this reasonably necessary for bis support. This is quite plain. But it is equally plain that for some reason tbe testatrix saw fit not to make Mr. Hillyer tbe judge of bis necessities in this respect, and to prohibit bim, by implication, from using any part of thp principal for support unless tbe necessity therefor should first be determined by a disinterested person. If she preferred tbe principal sum to go to others in case it should not be determined as she provided that it was required for her son’s support, I cannot perceive why this portion of her will should not be effectuated. Had Mr. Hillyer been given power by the will to malee tbe determination himself, we would have, in part at least, another question. But that power was expressly placed elsewhere, and by necessary implication denied to Mr. Hillyer.” Tbe court below found upon sufficient evidence that it was not established by tbe proof that tbe contingency specified in tbe will under which Drayton A. Hillyer was entitled to use $300 per year of tbe corpus of tbe estate of Nancy IT. Hill-yer existed. Tbe court also found upon sufficient evidence that Drayton A. Hillyer wrongfully appropriated tbe property of Nancy H. Hillyer’s estate. 2. It is further contended that tbe action is barred by tbe twenty years’ statute of limitation, because tbe executor, D. A. Hillyer, settled bis account in 1884 and again in 1894, and that a right of action accrued in 1884 and again in 1894, and that tbe present action is barred. [17] Tliis contention is untenable. The court below determined, and properly, that neither the 1884 nor the 1894 account was a final account. Both of these accounts were partial accounts and so designated. The executor’s liability continues until the estate is fully administered, and the sureties’ as well. Wallber v. Wilmanns, 116 Wis. 246, 93 N. W. 47; Roberts v. Weadock, 98 Wis. 400, 405, 74 N. W. 93; Estate of Davies, 161 Wis. 598, 155 N. W. 152. It is well settled in this state that the statute of limitations does not begin to run until a cause of action accrues. Estate of Hanlin, 133 Wis. 140, 113 N. W. 411. In the instant case the remaindermen had no right to the possession of the property until after the death of Drayton A. Hillyer. Moreover, there never had been a final accounting by Drayton A. Hillyer as executor of the estate of Nancy H. Hillyer during his life, and his duties continued until the trust was performed. Schinz v. Schinz, 90 Wis. 236, 63 N. W. 162; Wallber v. Wilmanns, 116 Wis. 246, 93 N. W. 47; 39 Cyc. 249 and note 43. It follows that the judgment of the court below must be affirmed. By the Qourt. — The judgment is affirmed, with costs.