Opinion
April 5, 1954 —
May 4, 1954.
APPEAL from an order of the county court of Milwaukee county: Roy R. STAUFF, Judge. Affirmed.
For the appellants there was a brief by Brennan, Brennan Brennan of Milwaukee, and oral argument by Joseph K. Brennan.
For the respondent there was a brief by the Attorney General and Beatrice Lampert and Gordon Samuelsen, assistant attorneys general, and oral argument by Mrs. Lampert and Mr. Samuelsen.
The petitioners, Walter C. Cox and E. R. Cox, seek a recovery as assignees of 33 per cent of the estate of Elizabeth Niemczyk, deceased, which estate has escheated to the state because she died intestate and left no kindred. The estate consisted of real estate and personal property. The petitioners allege that they have discovered the owners, and that they are the heirs of said Elizabeth Niemczyk, and that by virtue of an agreement the petitioners have an assignment of one third of the estate. On August 27, 1952, an order was issued by the county court directing the state of Wisconsin to show cause why testimony, pursuant to sec. 318.06(7), Stats., should not be taken to establish that Helena Szill, Stefania Szill, and Wladyslaw Szill, residents of Poland, are the closest heirs to said decedent, and second, to "allow the claim of Walter C. Cox and E. R. Cox to 33 per cent of the assets of the above estate pursuant to an agreement and assignment by the heirs, copy of which is attached to the petition."
"Agreement and Assignment.
"Estate of Elisabeth (Elizbieta) Niemczyk Szull vel Szille, deceased.
"Know all men by these presents that we ____________ for and in consideration Walter C. Cox and/or E. R. Cox, Chicago 208 South LaSalle street or his agent, having revealed to us the fact that there is a fund of money or other assets which may be due us from the above-entitled estate, or source as well as in further consideration of his time, effort, and expense in investigation and procuring proof of relationship, hereby agree to and by these presents do hereby grant, bargain, sell, convey, transfer, set over, and assign unto the said Walter C. Cox and/or E. R. Cox, his executors, administrators, and assigns, all our right, title, and interest in and to an undivided 33% of said fund of money, property, real or personal, joint bank account, insurance, or other assets left by the said deceased, and in any claims arising directly or indirectly out of the death of said deceased, or other assets awarded to us therefrom. We shall not be liable to Walter C. Cox and/or E. R. Cox for return of expenses incurred by said assignee in investigating and procuring proof of our relationship.
"All the above shall be binding upon our executors, administrators, heirs, and assigns."
The petition shows the decedent died March 31, 1947, that the estate was declared escheated on October 31, 1949, and was ordered to be paid into the state school fund pursuant to the provisions of sec. 318.03(1), Stats.
Petitioners also "make claim to prove the heirship of the two nieces and nephews of the decedent so that the right of Helena Szill, Stefania Szill, and Wladyslaw Szill to share in the decedent's estate is legally determined by this court for the further purpose of allowing petitioners 33 per cent claim in the estate."
The trial court made the following order:
"The above-entitled matter having been duly brought on for hearing on October 21, 1952, by petition and order to show cause herein, and the parties, by their respective counsel having stipulated that all the records, papers, pleadings, testimony, exhibits, and proceedings had heretofore in said matter be considered and incorporated herein and made a part hereof for the purposes of said hearing, and petitioners Walter C. Cox and E. R. Cox having appeared by Brennan, Brennan Brennan, by Joseph K. Brennan, and the state of Wisconsin having appeared by the attorney general by Beatrice Lampert and Gordon Samuelsen, assistant attorneys general, and the court having considered the materials and records on file herein and having heard the arguments of counsel for the parties, and being otherwise fully advised in the premises, and it appearing to the satisfaction of the court upon all of the foregoing that the petitioners are not claimants as owners, within the meaning of sec. 318.03(4), Stats., of the proceeds from the estate of Elizabeth Niemczyk, deceased, now held by the treasurer of the state of Wisconsin;
"Now, therefore, on motion of Gordon Samuelsen, one of the attorneys for the state of Wisconsin,
"It is ordered that the order to show cause on file herein, dated August 27, 1952, be and the same is hereby denied;
"It is further ordered that the petition of Walter C. Cox and E. R. Cox on file herein, dated March 11, 1952, be and the same is hereby dismissed on its merits, without costs to any party."
Petitioners appeal.
The decision below is contained in the order quoted in the statement of facts. The recitals in that order bring here only such matters as appear on the face of the record of the case. The alleged assignment upon which the claim of appellants is founded is not a part of the record. The record fails to show that it was proved or even presented as an exhibit at the hearing. No finding was made by the court that appellants are assignees of any alleged heirs. According to the record, such finding was not requested. At most, the copy of the assignment is an allegation, not proof.
The recitals in the order indicate that there was a full and fair consideration of all the questions raised by the petitioners, as well as those raised in behalf of the state. No bill of exceptions was settled in this case. As said in In re Baker, 72 Wis. 395, 39 N.W. 764, and relied on in Jos. Schlitz Brewing Co. v. Washburn Brewing Asso. 122 Wis. 515, 519, 100 N.W. 832:
"It is very clear that this court cannot reverse the final order upon its merits without the settlement of a bill of exceptions, as the order shows on its face that it was made after hearing the evidence, as well as upon a simple examination of the account. We must presume that the account was sustained by the evidence produced before the court, in the absence of a bill of exceptions showing the evidence or showing that no evidence was in fact produced before the court on such final hearing." (p. 400.) See also Bobczyk v. Integrity Mut. Ins. Co. 239 Wis. 196, 300 N.W. 909; Fidelity Deposit Co. v. Madson, 202 Wis. 271, 232 N.W. 525; Beck v. First Nat. Bank of Madison, 238 Wis. 346, 298 N.W. 161.
The order of the trial court recites that the same is based upon certain records, pleadings, testimony, exhibits, and proceedings stipulated into the record by the parties. Inasmuch as these are not before us by way of a bill of exceptions, we must assume that they were sufficient to sustain the order.
We do not reach the question of the necessity for the consent of the state to the alleged assignment or the necessity of the heirs being parties.
By the Court. — Order affirmed.