Buerger v. Buerger

Jones, J. The statute provides, among other things, that the complaint shall contain “a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition.” Sub. (2), sec. 2646, Stats. In drafting this complaint plaintiff’s counsel evidently attempted to make a concise statement of the necessary facts, [355] but in so doing omitted many facts that would have thrown needed light upon the controversy. It is clear that an order, was made by the county court appointing trustees in the estate, but it does not appear what was the authority upon which the order was based. It is claimed, from the fact that a final account of administrators had been modified, that the order could not have been based on a testamentary trust. If there was an agreement creating a trust it does not appear whether it was made by the deceased during his lifetimé or by parties interested subsequent -to his death. Although it is apparent that a trust was created in some manner, it does not appear whether the trustees have made reports to the county court since the order in question, or whether or. not they have continued to act under the direction of the court. It is claimed by counsel for the plaintiff that the final decree must have been entered upon some agreement or stipulation; that the estate was finally settled, and the jurisdiction of the county court was terminated. On the other hand, it is argued by counsel for defendants that under the statute expressly giving the county court jurisdiction in all cases created by will admitted to probate and in all matters relating to the settlement of estates of deceased persons, the circuit court had no jurisdiction, and they rely upon Estate of Johnson, 175 Wis. 248, 185 N. W. 180; Pietraswicz v. Pietraswicz, 173 Wis. 523, 181 N. W. 722; and Wisdom v. Wisdom, 155 Wis. 434, 145 N. W. 126. Since we have come to the conclusion that the demurrer should be sustained on another ground, it seems best that the decision as to the jurisdiction of the circuit court should be deferred until the facts are more fully stated in the complaint. From the bare facts that certain capital stock was inventoried for the sum of $20,000 and that it has been sold by the trustees for $43,333.33, it is claimed that the difference in amount between the two sums should be [356] ■ paid-to the life tenant. There are no allegations of fraud or misconduct on the part of the trustees or that the earnings of the corporation after the final decree and before the sale exceeded the amounts paid to the life tenant, or that the inventory actually represented the true value of the stock, and the cause of the increase of the value, if any, is not stated. It is argued by-counsel for plaintiff that we should presume that the enhancement in value over that stated in the inventory was due solely to an accumulation of earnings after the trustees came into possession. Counsel for defendants rely on the following language in the order: “If any part of said estate shall consist of shares of stock in any corporation, the dividends actually declared by such corporation on such stock shall represent the amount of profits, interest, and income of that part of said estate within the meaning of such words when used herein,” and claim that this language limits plaintiff to the amount she has received. They also claim that the increase may have been due to natural causes, and, if so, that the increase in value of the property held as an investment goes not to the life tenant but to' the remainderman. For the reasons already stated it is not necessary to decide this question at this time. It is one of the grounds of the demurrer that two causes of action have been improperly joined, one being against two persons as trustees, and the other an .action against one of them individually for an accounting as to an entirely separate transaction. This objection would be valid if the alleged causes of action were separately stated, but in this complaint they are intermingled in one count. It is well settled that in such case the remedy is not by demurrer but by a motion to make more definite and certain. Danielson v. Garage E. M. Co. 151 Wis. 492, 494, 139 N. W. 443; Nichol v. Alexander, 28 Wis. 118. If this course had been taken by defendants’ counsel and if by an order of the [357] court the facts had been properly and more fully stated, the litigation might have been materially shortened. Another ground of demurrer is that there is a defect of parties defendant appearing on the face of the complaint. It seems clear that this objection is well taken. Only a part of the order made by the court.is set forth in the complaint, but from this it appears that there is a life tenant; that certain income is to be paid to her; and that there is a corpus of the trust estate which is to be preserved. The conclusion is inevitable that this corpus was to go to one or to several remaindermen. These persons have a very vital interest in the question whether $23,333.33, claimed to be part of principal, shall be paid over to the life tenant, and obviously they should be made parties. When a demurrer is made on this ground, the statute requires “a particular statement of the defect.” Secs. 2649, 2651, Stats. This part of the demurrer is as follows: “There is a defect of parties defendant by reason of the fact that only the trustees are joined in this action and that the cestuis que trustent are not made parties to this action and all of said persons are parties to the action and proceedings now pending in the county court in probate of Dodge county.” It has been several times decided by this court that the demurrers must show the proper parties to be joined. Wilcox v. Scallon, 133 Wis. 521, 524, 113 N. W. 948; White v. White, 132 Wis. 121, 125, 111 N. W. 1116. But it is also the rule that where the plaintiff can readily ascertain the names of the necessary parties the demurrer need not state them. Franke v. H. P. Nelson Co. 157 Wis. 241, 147 N. W. 13. In this instance plaintiff is claiming under a trust as life tenant. Necessarily the order on which suit is brought names the remaindermen or cestuis que trustent. The plaintiff can hardly claim that these names were unknown to her, and we must hold that the demurrer [358] contained a particular statement of the defect within the meaning of the statute. By the Court. — The order overruling the demurrer to the complaint is reversed, and the cause remanded for further proceedings according to law.