Opinion
January 9, 1941 —
February 4, 1941.
APPEAL from a judgment of the circuit court for Florence county: AROLD F. MURPHY, Circuit Judge. Appeal dismissed.
Irving W. Smith of Niagara, for the appellant.
For the respondent there was a brief by Blaine M. Linke, collection and deportation counsel, and Paul B. Knuese, assistant collection and deportation counsel, and oral argument by Mr. Knuese.
The appellant, Charles Bryngelson, as administrator of the estate of his brother, Alfred O. Bryngelson, deceased, appeals from a judgment of the circuit court for Florence county entered July 27, 1940, whereby it was adjudged that the proceeds of a certain insurance policy on the life of the deceased Alfred O. Bryngelson belonged to the estate of said deceased and were subject to the payment of the debts of the deceased.
The case was tried to the court upon stipulated facts. The substance of the court's findings is as follows: Alfred O. Bryngelson, deceased, was duty committed to the Winnebago State Hospital on July 8, 1920, and remained there until December 2, 1920, when he was paroled. He re-entered the hospital on October 8, 1924, and remained there continuously until August 8, 1935, on which date he was transferred to the Marinette county asylum where he remained until his death on September 22, 1936. On December 22, 1925, the county court of Florence county appointed Charles Bryngelson guardian of said Alfred O. Bryngelson, incompetent.
Among the assets of said guardianship was a twenty-year endowment policy issued by the Detroit Life Insurance Company of Detroit, Michigan, on the life of said Alfred O. Bryngelson, dated March 24, 1917, in the sum of $1,000. By the terms and conditions of said policy of insurance, the full sum thereof was payable to Alfred O. Bryngelson, the insured, on March 20, 1937, should the said insured be living at that date, and in the event that he died before that date, the proceeds of the policy were payable to Ottilia Bryngelson, the mother of the insured. The insurance policy further provided that the insured reserved the right to change the designated beneficiary; but that if said beneficiary (the mother) does not survive the death of the insured, the proceeds of the policy shall be paid to the executors, administrators, or assigns of the insured, unless otherwise provided in or by indorsement on the policy. There were no other provisions or indorsements on the policy affecting the payment thereof to the insured's executors or administrators, nor was there any assignment of the policy.
By the provisions of the policy it was payable at the time of the death of said Alfred O. Bryngelson, incompetent, to the executors or administrators of his estate. Upon his death. the insurance company paid the proceeds of the policy to Charles Bryngelson as administrator of the estate of Alfred O. Bryngelson, deceased.
Ottilia Bryngelson died some time in the year 1928, leaving surviving her husband, Anton Bryngelson, who died July 1, 1934, Alfred O. Bryngelson, the incompetent now deceased, Charles, Emil, and Verner Bryngelson, children of said Ottilia and Anton Bryngelson. At the time of the issuance of the policy on March 24, 1917, all of said children were over the age of twenty-one years.
The State Board of Control of Wisconsin, predecessor of the State Department of Mental Hygiene of Wisconsin, filed a claim against the estate of Alfred O. Bryngelson, deceased, in the sum of $4,159.30 for maintenance furnished the incompetent.
As conclusions of law the court found that the rights of Ottilia Bryngelson, as beneficiary, terminated upon her death; that her rights to the proceeds of the policy did not survive in favor of her children, Charles, Emil, and Verner Bryngelson; that the provisions of the policy, providing for payment to the executors or administrators of the estate of the insured in the event the designated beneficiary does not survive the death of the insured, control the disposition of the proceeds of the policy; that pursuant to the terms of the policy, the proceeds are payable to the administrator of the estate of the incompetent, subject to the claims of his creditors; and that the proceeds of the policy paid by the insurance company to Charles Bryngelson, as administrator of the incompetent's estate, is subject to the claim of the State Department of Mental Hygiene, successor to the State Board of Control of Wisconsin, and to any other creditors, if any, of the estate. Judgment was accordingly entered. Charles Bryngelson as administrator of the estate of the deceased appeals. Further material facts are stated in the opinion.
The facts are not in dispute. The litigation originated in the county court of Florence county. After the insurance company had paid the proceeds of the policy in question to Charles Bryngelson as administrator of the estate of his deceased brother, Alfred, Verner Bryngelson, also a brother of the deceased, petitioned the county court of Florence county for an order declaring that the proceeds of the insurance policy be declared to be the property of himself and his brothers, Charles and Emil, and directing the administrator of the estate to so pay the proceeds of the insurance policy to said Verner, Emil, and Charles Bryngelson free of any claim of the estate or its creditors. The respondent having filed its claim against the estate of the incompetent, filed objections to the petition and to the granting of the order prayed for. On December 7, 1938, the county court entered judgment adjudging that the beneficiary's rights (the mother's) terminated upon her death and that Verner, Emil, and Charles Bryngelson had no, interest or claim to the proceeds of the policy, except as heirs of their brother, Alfred, deceased, subject to the rights of creditors of the estate. Thereupon, Charles Bryngelson, in his official capacity as the administrator of the estate of Alfred, appealed to the circuit court for Florence county from the judgment rendered in the county court with the result as indicated in the statement of facts preceding the opinion.
Verner Bryngelson, who instituted the proceedings in the county court, did not appeal from the judgment of the county court. The sole appellant from the judgment of the county court and from the judgment rendered in the circuit court is Charles Bryngelson in his capacity as administrator of the estate of his deceased brother Alfred. Both the county court judgment and the circuit court judgment are in favor of the administrator.
Sec. 324.01, Stats., relating to appeals from county courts, so far as here material, provides:
"(1) In counties having a population of fifteen thousand or less any executor, administrator, guardian, trustee or any person aggrieved by any order or judgment of the county court may appeal therefrom to the circuit court. . . .
"(2) In counties having a population of over fifteen thousand any executor, administrator, guardian, trustee or any person aggrieved by any order or judgment of the county court may appeal therefrom to the supreme court. . . ."
Sec. 274.10, Stats., relating to appeals from the circuit to the supreme court, provides:
"Any judgment within section 274.09 or any order defined in section 274.33 may be reviewed before the supreme court upon an appeal by any party aggrieved. . . ."
In the instant case Charles Bryngelson, as administrator, is not an aggrieved party. We think it elementary that a party may not appeal from a judgment in his favor. In the recent case of Estate of Crocker, 236 Wis. 579, 295 N.W. 717, the court at page 580 said:
"It is obvious that only a person who is aggrieved by an order can appeal therefrom. Powers v. Powers, 145 Wis. 671, 130 N.W. 888. The question presented . . . is whether the appellant as administratrix is an aggrieved party, or whether the person who is administratrix is in her individual capacity the aggrieved party. If she is aggrieved only in the latter capacity, she cannot appeal as administratrix."
What is there said is applicable in the instant case. The only issue involved is whether the proceeds of the insurance policy on the life of Alfred O. Bryngelson, deceased, belong to the three surviving brothers or to his estate. None of the brothers in their individual capacities are before this court on this appeal. Charles, the administrator, if aggrieved in his individual capacity by the judgments of the county and circuit courts, had no right to appeal as administrator.
Though respondent has made no motion to dismiss the appeal herein, the facts above indicated appearing of record showing that the administrator in his official capacity has no right of appeal, this court will dismiss same upon its own motion. The expense incurred by the administrator in connection with this appeal shall not be paid out of the assets of the estate of Alfred O. Bryngelson, deceased.
By the Court. — Appeal dismissed.