Full text
Lehman v. Weiner and others
ViNJE, J.
Since the appeal presents the single question whether the circuit court will entertain an action for damages for converting assets belonging to an estate that is being probated in the county court, no further detailed statement of the allegations of the complaint than that given is deemed necessary. The court properly sustained the demurrer. There is no allegation that the estate is solvent. If it is not, plaintiff is not injured by the alleged conversion. Rut, assuming it to be solvent, the title to the property alleged to' be converted passed to the executors, since it was all personal property, and they primarily should marshal the assets of the estate. However, conceding they would not do so in this case because of the facts alleged in the complaint, still the demurrer was properly sustained because the plaintiff has an adequate remedy in the county court. He can there compel the executors to file a correct inventory, to render a just and true final account, and to disclose all property coming into their hands, and if any third party is suspected of having or concealing any property belonging to the estate he may be cited to appear before the county court and make a full disclosure of the facts. Sec. 3825, Stats. 1917. It therefore appears that plaintiff has an adequate remedy in the county court to right all the wrongs complained of. In such cases the circuit court will not assume jurisdiction, but will leave the parties to the county court remedies. Wisdom v. Wisdom, 155 Wis. 434, 145 N. W. 126, and cases cited..
[430] This subject was so fully treated in tbe Wisdom Case and tbe cases.there referred to that no further discussion or restatement of tbe principles involved is deemed necessary. If tbe proceedings in tbe county court have terminated and tbe executors have been discharged, application therein for tbe appointment of an administrator de bonis non under sec. 3813a., Stats-. 1917, can be made, and such administrator can proceed to collect tbe unadipinistered assets.
By the Court. — Order affirmed.