Barney v. Babcock's Estate

91 N.W. 982, 115 Wis. 409, 1902 Wisc. LEXIS 234
CourtWisconsin Supreme Court
DecidedOctober 21, 1902
StatusPublished
Cited by6 cases

This text of 91 N.W. 982 (Barney v. Babcock's Estate) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barney v. Babcock's Estate, 91 N.W. 982, 115 Wis. 409, 1902 Wisc. LEXIS 234 (Wis. 1902).

Opinion

MARSHALL, J.

The trial court seems to' have decided this case wholly upon the theory that it was competent in this action to review the proceedings of the county court of Dodge county, appointing Willard administrator de bonis non with the will annexed, of the estate of Josiah Woodward, and to declare the same void. The court seems to have exercised that supposed jurisdiction, to have declared such appointment absolutely void, and thereby reached the conclusion that no liability existed against his estate as administrator ‘de bonis non, consequently none against the estates of his deceased bondsmen. After reciting the facts leading up to and inclusive of Willard’s appointment, the learned circuit judge, [413]*413in. the opinion filed, on which the findings and conclusions upon which the judgment is based were made, used this language:

“There was no authority of law,''upon such a state of affairs, for the appointment of an administrator de bonis non; and that the sureties, signing the bond of Andrew Willard as administrator de bonis non only were liable for the legal effect of the bond, which was, that such administrator de bonis non should legally administer such estate as legally came into his hands as such administrator.”

We must assume that the language, “there was no authority of law,” was used by the learned judge upon the theory that the entry of the order settling the account of E. H. Woodward, executor, and adjudging the amount of the fund held by him in trust, ipso facto discharged him as executor, leaving nothing whatever to. be done by him as such in the Josiah Woodward estate; that the county court, by the subsequent proceedings, did not obtain any jurisdiction of the subject-matter of the appointment of an administrator da bonis non because there was, in fact, no occasion for such an appointment. Upon no other theory is it reasonable to suppose the judge looked upon the appointment of Willard as without any “authority of law.” Uo court has. yet been given the power, under our judicial system, to declare void in a collateral proceeding, any order or judgment of such or any other court because of judicial errors in entering it, however numerous or grievous they may be. ISTo principle of law is better settled than that judgments and orders are absolutely free from any such danger. Cody v. Cody, 98 Wis. 445, 74 N. W. 217; Roberts v. Weadock, 98 Wis. 405, 74 N. W. 93; Parsons v. Parsons, 101 Wis. 76, 77 N. W. 147; Wells, Res Judicata, § 217; Giffert v. West, 37 Wis. 115; Quackenbush v. W. & M. R. Co. 71 Wis. 472, 37 N. W. 834; Cramer v. Stone, 38 Wis. 259; Pray v. Hegeman, 98 N. Y. 351; Iowa Co. v. M. P. R. Co. 24 Wis. 93; Danaher v. Prentiss, 22 Wis. 311. When a court has jurisdiction to render a [414]*414judgment, every proposition assumed or decided, leading up to the final result embodied in it, is deemed to be included therein; and until it is reversed on appeal or in some direct proceedings to that end, it is deemed to be conclusive upon all parties to the proceeding in that and all courts. So it follows that if the county court of Dodge county had jurisdiction of the subject-matter of the appointment of an administrator de bonis non to succeed E. H. Woodward upon the filing of his petition to that end, the circuit court in this action committed a grievous error in deciding that what the county court did in the exercise of its jurisdiction was void.

It is by no means clear but that, assuming that the order settling Woodward’s account as executor ipso facto terminated his office as such, or at least left a state of facts calling for the appointment of an administrator de bonis non, still a judicial question in regard to the matter was presented to the county court for adjudication, by the petition for such appointment, and in that event the rule above stated would bar any court from subsequently reviewing the proceedings and adjudging the final order or judgment entered upon the petition void in a collateral proceeding. Rut that question is rendered immaterial by the conclusion which'we have reached as to the effect of the order. Obviously, if that left Woodward with some duty to perform as executor, it being conceded that the situation at the time of its entry continued up to and inclusive of the time of the appointment of the administrator de bonis non, then it must be conceded, and is, as we understand it, — and if not, we should have to so hold,— that an occasion existed for such an appointment, or at least that, whether there was or was not such an occasion was a judicial question which the court was called upon to solve.

The material part of the order in question is as follows:

“The said Edward H. Woodward be and he hereby is released and discharged from all liabilities of his said administration, and of the bond given by him as such executor upon [415]*415his paying and delivering the residue of said estate remaining in his hands according to said account, to wit: the sum of ($2,329.40) two thousand three hundred and twenty-nine dollars and 40-100 dollars held by him in trust, the income to be paid to Lucy M. Thomas during her life and after her death the principal to be paid to her children share and share alike as provided by the will of said deceased — and as to said $2,349.40 the said bond of said executor to be and remain in full' force until the further order of this court.”

That language seems plain. The county judge evidently supposed, and accordingly judicially determined, that Woodward’s duties as executor were not fully terminated till the principal sum mentioned, the trust fund, was paid over by him to those ultimately entitled thereto. He was very careful to leave no doubt about the matter. Ex industria■, he endeavored to impress that upon the executor and his bondsmen as well. There can be no reasonable controversy but that this language bears out that statement:

“And as to said $2,329.40 the said bond of said executor to be and remain in full force until the further order of this court.”

True, the word “trust” was used in the order, but it was used in such a manner as to clearly indicate that the idea in: the judicial mind was that the fund in the hands of the executor was to there remain in trust until otherwise ordered by the court. Hothing to indicate a purpose to transfer the fund from the control of Woodward, executor, to him in a purely trust capacity, appears. All indications are that the court considered that his office as executor, so far as regards executing the trust, should continue till the trust fund reached the ultimate takers, unless some other provision was made to execute the same. That may have been an erroneous view of the will and the law, but if so it was not one which the county judge had “no authority of law” to entertain. At most it was a mere error of judgment in the exercise of the undoubted jurisdiction of the court, — such an error, as has [416]

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Bluebook (online)
91 N.W. 982, 115 Wis. 409, 1902 Wisc. LEXIS 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barney-v-babcocks-estate-wis-1902.