Hewitt v. Jamieson

Crownhart, J. The petitioner claims that the court erred in its denial, in that the petition should have been granted ex parte and without notice to Jamieson. Sec. 321.02 of the Statutes provides: “(1) Actions may be brought on the bonds of executors, administrators and testamentary trustees by permission of the county court in the following cases: “(a) ... . . “(b) By any legatee, next of kin or other person to recover his share of the personal estate, after the county court has, by order or judgment, declared the amount due to him, if the executor, administrator or trustee shall fail to pay the same when demanded.” Sec. 321.04, Stats., provides: “On the application of any person authorized by this chapter to commence an action on such bond the county [18] court may grant permission to such person to prosecute the same, and shall thereupon furnish to the applicant a certified copy of such bond, together with a certificate that permission has been granted to such person to prosecute, stating his name and residence.” It will be noted that the statute does not make it mandatory upon the court to grant the application, but provides that he may grant permission, and it will be further noted that the court may grant permission “if the executor, administrator or trustee shall fail to pay the same when demanded.” This court has held that notice is not necessary on an application for leave to sue, but the order may be granted ex parte. Elwell v. Prescott, 38 Wis. 274. But the court did not hold that the county court might not make such investigation as was necessary to satisfy the court that permission should be granted. The court said: “The statute does not make such a notice necessary. . . . It is manifest that, if it is made to appear satisfactorily to the county judge that the administrator neglects and refuses to obey the order for the payment of money, or the performance of any other act which he is required to do, the judge is then authorized to grant the permission ex parte.” Elwell v. Prescott, 38 Wis. 274, 278, 279. Sec. 324.19 of the Statutes provides: “When notice of any proceedings in a county court shall be required by law or be deemed necessary by such court and the manner of giving the same shall not be directed by any statute, such court shall order notice of such proceedings to be given to all persons interested therein in such manner and for such length of time as it shall deem reasonable.” This section further indicates that the county court may, in its discretion, make such investigation as it shall deem necessary, whether notice is required or not. We think there can be no doubt that the court was within its discretion in making such investigation as it deemed necessary to determine whether or not the application should be granted. [19] Upon such investigation the court would not be authorized to try the issues, but it certainly would be authorized to' ascertain that there were prima facie grounds for relief. It appeared from the records of the county court that Jamieson, as executor of the estate in this matter, had duly paid over to the general guardian of the wards of the petitioner the amount assigned by t]ie court to such wards, and that he had taken proper receipts therefor and had filed them with the court. The general guardian was authorized by the statutes to “settle ail accounts of the ward and may demand, sue for, collect and receive all debts due to him.” Sec. 319.25, Stats. Gill v. Hermann, 168 Wis. 589, 171 N. W. 76; 21 Ruling Case Law, 29; 12 Ruling Case Law, 1123-1125; 28 Corp. Jur. 1130. Jamieson, therefore, fully complied with the law and the order of the court in paying the money over to Burns. But it is claimed that it was necessary for the executor of the estate to make some investigation of the solvency and reputation of the general guardian before paying the money to him. We do not think this is so. The statute prescribes the duties of the executor and of the guardian. The guardian is entitled to the moneys of his ward, and may sue if denied him. Clearly, the executor is not required to ascertain at his peril that the guardian is solvent. This is a matter for the county court that appoints the guardian. It must in the first instance require a bond, which it may increase from time to time. It is the duty of the court to require annual reports of the guardian’s trust. The statute requires the executor to take receipts from the guardian and file duplicates with the county court having charge of the estate. The statutes also require that the county court wherein such receipts are filed shall transmit a copy thereof to the county court appointing the guardian. The reason is apparent. It is to advise the county court appointing the guardian of any sums paid to him fin trust in a proceeding in another jurisdiction, so that the court appointing the guardian may in [20] crease the bond of the guardian or take such other steps as may be necessary to protect the ward. The county court, being fully advised by its own records that the executor had complied with its order and distributed the money to the proper parties, and had duly filed receipts therefor with the court, properly denied the petition. By the Court. — The order of the county court is affirmed.