Pietraszwicz v. Pietraszwicz

Esci-iweiler, J. The circuit court should have promptly refused to act in this matter. This was its plain dut)^ from a mere inspection of the complaint and was rendered still more certain at the close of the plaintiffs’ testimony. There is in this entire record an absolute want of any peculiar or extraordinary circumstances whereby it was shown that a [529] full, adequate, and complete remedy could not or would not have been afforded by a resort to the orderly course of procedure in the county court. Such lack appearing is a practical equivalent to a want of jurisdiction in the circuit court. Conceding that, under the broad equitable powers of a court of nisi priits such as is the circuit court, there exists a concurrent jurisdiction with the county court as to matters involving the estates of decedents, nevertheless it is well and long established by a series of decisions of this court that the circuit court is as much bound to refuse to assume jurisdiction when such lack of power to grant adequate relief in the county court is not clearly shown as though there were an absence of jurisdiction in the circuit court. Meyer v. Garthwaite, 92 Wis. 571, 573, 66 N. W. 704; Burnham v. Norton, 100 Wis. 8, 13, 75 N. W. 304; Washington Co. v. Schrupp, 139 Wis. 219, 222, 120 N. W. 856; Wisdom v. Wisdom, 155 Wis. 434, 437, 145 N. W. 126; Komorowski v. Jackowski, 164 Wis. 254, 258, 159 N. W. 912; Lehman v. Weiner, 167 Wis. 428, 429, 167 N. W. 806; Guardianship of Knoll, 167 Wis. 461, 469, 167 N. W. 744. The nature of the peculiar circumstances which may support the exercise.of jurisdiction by the circuit court is indicated in such cases as Gianella v. Bigelow, 96 Wis. 185, 71 N. W. 111; Lindemann v. Rusk, 125 Wis. 210, 104 N. W. 119; Eisentraut v. Cornelius, 134 Wis. 532, 115 N. W. 142; Merrill v. Comstock, 154 Wis. 434, 143 N. W. 313; Jones v. Citizens’ S. & T. Co. 168 Wis. 646, 656, 171 N. W. 648. None of these cases, however, afford any support for the proceedings such as were taken in the court below resulting in its judgment. The complaint disclosed, and the evidence confirmed it, that the plaintiffs had no such present legal interest in this personal property as would warrant their bringing this action. If Steve Pietraszwicz died intestate, as plaintiffs claim he did from their attack upon his alleged will, then, the legal title to such personal property vested upon his death in [530] his estate represented by an administrator. To those ultimately entitled to share in the personal property title devolves after administration and by the final decree of the proper court administering the estate rather than by operation of law, as does the title to real estate. McKenney v. Minahan, 119 Wis. 651, 658, 97 N. W. 489; Stehn v. Hayssen, 124 Wis. 583, 588, 102 N. W. 1074; Karel v. Pereles, 161 Wis. 598, 604, 155 N. W. 152; Palmer v. O’Rourke, 130 Wis. 507, 110 N. W. 389; Schoenwetter v. Schoenwetter, 164 Wis. 131, 134, 159 N. W. 737. The plaintiffs, if fearful of any possible loss or destruction of personal property belonging to the deceased, had ample and adequate remedy by applying to the county court for the appointment of a special administrator under sec. 3810, Stats. Such special administrator, by sec. 3811, has power to collect the goods and chattels of a deceased and preserve the same for the executor or administrator to be afterward appointed. Such special administrator, if appointed, or the regular administrator or executor when appointed, is the proper party to proceed to collect and preserve the personal property of a deceased. Until such official of the court, either special or general administrator or executor, so holding the legal title to the assets of the estate of the deceased does some act which is an invasion, or threatens to do that which amounts to an injury and infringement, of the equitable beneficial interests of the legal distributees, the primary right of possession and control over such assets is in such official representative of the estate. Rowell v. Rowell, 122 Wis. 1, 9, 99 N. W. 473. Upon the record it appears that the county court had before the commencement of this action already assumed jurisdiction of the estate of the deceased. It clearly appears that there was ample time intermediate the death and proposed auction sale for any one concerned to have applied to the county court for the appointment of a special administrator, and ample time for such special administrator to [531] commence an action, if any such were necessary to preserve such property. These proceedings, therefore, should have been halted at the very threshold, and the issuing of the injunction restraining the sale, the proceeding to hear the alleged issues, and the entry of a judgment in form as was done in this case were each and all done by the court under such a situation that it amounted to a complete want of proper jurisdiction, and they must for that reason be each and all set aside. To hold otherwise would be to permit or even encourage an unseemly scramble by those who might claim to be ultimately interested in the personal property of a deceased to resort to other than the orderly procedure for the settlement of estates. After a long and bitterly contested trial the evidence of the plaintiffs as to the sole ground upon which they claim or the court appears to have entertained jurisdiction, namely, that the defendant was proceeding to dispose of property that belonged to the deceased rather than to herself, was of so slight a texture that the court was unable, as appears from his twentieth finding, supra, to determine just what personal property belonged to the deceased and that was being sold by the defendant. A search of the record discloses no testimony /upon which a finding that any definite article of personal property which the defendant was claiming as her owff did in fact belong to the deceased at the time of his death. There is some testimony that shortly aftér their rnarriage, at least twenty years prior to his death, he ¡had a team of horses, a binder, and possibly other personal property, some of which he took to defendant’s farm at the time he commenced to live there. There is no testimony, however, upon which could be supported a finding'that there was any of this property still belonging to the deceased at the time of his death. The plaintiffs utterly failed to meet the burden of proof required of them on this essential fact, even if such fact had been sufficient to warrant the circuit court entertaining jurisdiction. [532] In view of the disposition that is being made of this case and the setting aside and vacating the judgment in its entirety and all the proceedings, it is unnecessary to pass upon of determine other questions raised upon this appeal. We cannot refrain, however, from saying that a careful consideration of the testimony in this case falls far short of impressing us, as it appears to have done the trial court, that the alleged last will of the deceased was not executed according to law, on the ground, as stated by the trial court, that it was impossible under the circumstances for the deceased to have seen the witnesses sign the instrument presented as his will. The circuit court having had no proper justification for its proceeding to a trial and determination in this case, there was no warrant for its impounding, as was done, the proceeds of the auction-salestill less for its direction that such impounded proceeds be turned- over to the public administrator, who under no view of the law-should have been made the custodian. There is no basis, therefore, for withholding such proceeds of the auction sale from the defendant. I-f the éstate of the deceased had or has any rights or claims'to:-any of such personal property disposed XT-by defendant or any'portion of the proceeds derived-thesefrom, ■ Such qüéstioh-s may still be determined'iii proper proceedings 'brought -by-the proper parties and without being affecte^Kn ■any way by what-was attempted'to be done in.this action pr by the'present disposition-thereof by this court' ■It-follows -therefrom that the judgment of the court below! should- be reversed, the- action -dismissed, -and-the money proceeds from--the auction sale be-and hereby are directed to ' b'é'-paid 'ovér-'to the defendant.- -- - ' By the Court- — Judgment reversed,' and cause remanded with-'-directions to dismiss the proceedings and pay over the ■funds tó defendant- ' ' ...