Schoenwetter v. Schoenwetter

159 N.W. 737, 164 Wis. 131, 1916 Wisc. LEXIS 40

• Court: Wisconsin Supreme Court
• Decided: October 24, 1916
• Status: Published

Opinion

WiNsnow, C. J.

The pleadings show that all the persons beneficially interested in the estate of Louise Schoenwetter (whether she died testate or intestate), with the exception of possible creditors, agreed that Edward should collect the assets and distribute them, and for that purpose should accept from Barney, in place of the property of Louise in his hands, the present note; that more than four years elapsed after the making of that agreement and note before the commencement of this action; and that there have never been any probate proceedings instituted for the settlement of the estate.

It is well settled that heirs obtain no legal title to personal property by the death of the ancestor, but that the title goes to the executor or administrator. Citation of authorities is unnecessary on this proposition. Legal heirs or legatees, however, are beneficially interested in the estate, and they doubtless possess the equitable title subject only to the expenses of administration and the payment of debts. McKeigue v. C. & N. W. R. Co. 130 Wis. 543, 110 N. W. 384.

Nothing they could do would affect the right of a creditor to procure the appointment of an administrator of the estate, or the duty t.o probate the will (if one exists), but no reason is perceived why the parties now before the court should not be bound by their agreement on well established principles of estoppel. By virtue of the agreement and note Barney has retained to his own use the property of the estate for more than four years. Had these papers not been executed, probate proceedings would unquestionably have been commenced hy the other heirs and he would have been required to turn over tbe property to tbe legal representative years ago. Ee-lying on tbis note as a valid obligation, tbe other beirs bave lost tbe possession and enjoyment of tbeir shares of tbe estate for several years. Tbe makers cannot now say that it is not valid. One cannot deny a representation which be has made, when by such denial injury would result to another who, having tbe right so to do, has relied on tbe representation and based bis own conduct thereon. It is clear that both defendants are estopped from asserting tbe defensé of lack of consideration.

Tbe appellant was liable as maker to the plaintiff notwithstanding be was only an accommodation party.. Sec. 1675— 55, Stats. (Negotiable Instrument Law). Being a maker, neither presentment for payment nor notice of dishonor was necessary in order to charge him with liability. Sec. 1678, Stats.

No judgment rendered in tbis ease can affect tbe rights of an administrator or executor if one should hereafter be appointed by tbe proper court. If there be a will in existence it should be at once probated. No one has any right to suppress or change tbe terms of a will. Will of Dardis, 135 Wis. 457, 115 N. W. 332; Will of Rice, 150 Wis. 401, 135 N. W. 956, 137 N. W. 778. It would be tbe part of wisdom for tbe plaintiff, in case be recovers in tbis action, to take measures to ascertain certainly whether there is a will and, if there be one, cause tbe same to be probated, before disposing of tbe proceeds of tbe judgment.

By the Court. — Order affirmed.