Opinion
February 9, 1956 —
March 6, 1956.
APPEAL from a judgment of the county court of Kenosha county: J. ALLAN SIMPSON, County Judge of Racine county, presiding. Affirmed.
For the appellants there was a brief by Baker, Juliani Stanhope of Kenosha, and oral argument by J. Clark Stanhope.
For the respondent there was a brief by Hammond Hammond of Kenosha, attorneys, and Shea Hoyt of Milwaukee of counsel, and oral argument by Ralph M. Hoyt.
In the ancillary administration of the estate of Anna Rieman pending in the county court of Kenosha county, the court on January 19, 1955, entered an order denying the application of the ancillary administrator for leave to sell Wisconsin real estate owned by decedent at the time of her death. On July 14, 1955, the court entered judgment modifying and approving the ancillary administrator's account, and discharging him. This appeal is by Fred J. Rieman, a residuary devisee, and others, and was taken from the judgment. There was no appeal from the order referred to.
Anna Rieman died testate July 10, 1941. At the time of her death she was a resident of Chicago, Illinois. Her will, which was admitted to probate in the probate court of Cook county, Illinois, on November 17, 1942, provided for the appointment of Nels H. Olson as executor, with his son, Robert H. Olson, designated as successor executor in the event of the father's death. Both were to serve without bond and with full power to sell any real estate or personal property belonging to the estate, and to execute deeds therefor. On July 25, 1943, the Illinois executor contracted to sell decedent's Wisconsin real estate to Gladys E. Fleischmann for $1,900, and received a down payment of $500. Petitions were filed in the county court of Kenosha county by the executor and by Erik Hansen, an attorney at law of Silver Lake, Kenosha county, Wisconsin, for the admission to probate of an authenticated copy of the will under sec. 310.07, Stats. On August 10, 1943, the court ordered a hearing upon said petitions and scheduled it on September 14, 1943. The court also ordered that the time for filing claims against the estate be limited to December 14, 1943. The authenticated copy of the will was admitted to probate on September 14, 1943. Erik Hansen was appointed administrator with the will annexed. On May 27, 1944, said administrator filed an inventory showing real estate appraised at $2,400 and no personal property. It appears that a claim against the estate was filed in the Kenosha county court by Irene Richter on November 3, 1943. Objection to the claim was filed by the administrator on June 27, 1944. The claim was settled for $250 on November 15, 1948, and payment of said amount was made with funds furnished to the Wisconsin administrator by the Illinois executor. On July 6, 1954, a petition was filed in the Kenosha county court by the administrator, Erik Hansen, for authority to sell the Wisconsin real estate in order to be able to pay administration expenses. The petition alleged that there were no unpaid debts of the estate. On November 9, 1954, a petition was filed in said court by Fred J. Rieman, a residuary devisee and one of the present appellants, for the removal of Erik Hansen as administrator because of his failure to collect rents from the Wisconsin real estate and to pay taxes thereon. On January 19, 1955, an order was entered by the county court of Kenosha county denying the administrator's petition to sell the real estate on the ground "that the will of the said decedent gives the executor of said will full power of sale of said real estate and that no license for sale of the real estate is required." At that time the court directed the administrator to file a final account and bring it on for hearing. No appeal was taken from the order denying the administrator's petition to sell.
On April 28, 1955, the Illinois executor deeded the Wisconsin real estate to Gladys E. Fleishmann in fulfilment of her land contract. The final account of the administrator was filed on May 26, 1955. It indicated cash receipts from, or to be received from, the Illinois executor. The disbursements shown totaled the amount of the cash received, and consisted of the following: Claim of Irene V. Richter paid, $250; abstract of title expenses, $22.50; appraiser's fees, $50; publication expenses on admission of will and on final account, $16.10; publication expenses on application for sale of real estate, $9.50; certified copies, etc., $21.25; telephone tolls, $12.64; fees of administrator, $150; attorney fees of administrator, $200. Total, $731.99.
Objections to the final account were filed on behalf of Fred J. Rieman on June 23, 1955. The objection was based on the ground that the account did not correctly represent the amount chargeable to the administrator, for the reason that assets had been omitted in the statement of the account which the administrator received, or might and should have received and accounted for, as follows: (1) Real estate of decedent, inventoried as an asset of the estate, located in Kenosha county; (2) rental income, or compensation for reasonable value of the use and occupancy of the real estate from July 10, 1941; (3) receipt of $2,400 from Gladys E. Fleishmann in 1954 as an offer for the purchase of the real estate; (4) interest on $1,900 purportedly due the estate on purported contract of sale of the real estate from November 17, 1942. Objector claimed that $150 was an excessive fee for the administrator and that $200 for attorney fees was not a proper credit, being the personal obligation of the administrator. Objection was also made to the item of $8.09 paid as a disbursement to the administrator's attorney for a long-distance telephone call. The Kenosha county court rendered judgment which was entered July 14, 1955, allowing the final account, except for the item of $22.50 abstract expense, and $9.50 publication expense. The judgment also provided for the discharge of the administrator. There were recitals in the judgment to the effect that the real estate had been sold by the Illinois executor, and that all inheritance tax had been paid.
On September 8, 1955, notice of appeal from the judgment dated July 14, 1955, was served on behalf of Fred J. Rieman and other residuary devisees. On September 29, 1955, the court entered an order striking from the proposed bill of exceptions pages 1 to 17 of the transcript of the testimony, on the ground that the items therein contained do not relate to the final account, are surplusage, and involve matters not on appeal. The bill of exceptions was settled and signed on October 10, 1955.
In his written objection to the administrator's account, the appellant stated that he had proffered an offer to purchase the real estate from the administrator for $7,000, and had tendered $100 as earnest money; further, that although the administrator had inventoried the real estate as an asset of the estate, he did nothing to accept the offer. Objector also stated that the administrator aided, advised, and encouraged the Illinois executor in the sale of the property to Gladys E. Fleishmann, well knowing that the contract between said executor and Gladys E. Fleishmann was null and void, and that secs. 238.19 (now sec. 310.075) and 287.16, Stats., had not been complied with.
Appellants seek to have the judgment, which allowed the final account and provided for the discharge of the administrator, vacated and set aside. They submit that they are entitled to a direction from this court to the trial court to set aside the sale and conveyance of the real estate made by the Illinois executor.
The appeal is solely from the judgment approving the administrator's account and discharging him from further responsibility in the proceedings. No appeal was taken from the order refusing permission to the administrator to sell the real estate. The appeal from the judgment does not bring up for review the order pertaining to the petition for the sale of the real estate. In an early case, Gunn v. Green (1861), 14 Wis. *316, it was ruled that an appeal from an order of the probate court relative to settlement of an administrator's account, will not bring up for review the regularity of the proceedings of the probate court in granting letters of administration, or in ordering the sale of real estate for the payment of debts. That ruling stands unreversed.
Appellants contend inter alia that it was error to have allowed the administrator's account, for the reason that it failed to show the real estate as an asset of the ancillary administration, and also failed to show any collection of rents of the real estate by the ancillary administrator.
An administrator, whether he be domiciliary or ancillary, is not obliged to include real estate in his account. Under provision of sec. 317.01 (1), Stats., he is chargeable only with the personal property of the estate which comes into his possession, and with the proceeds of any real estate sold by him. The real estate descends to the heirs or devisees upon decedent's death, and an administrator does not take title thereto. Under some circumstances he may obtain a right of possession. However, he has no duty of possession unless it is necessary to do so for the payment of debts or administration expense. It is plain that if he does not take possession, he is under no responsibility to find a tenant or collect rents. Sec. 312.04 provides that an administrator "shall have a right to the possession of the real estate of his decedent, except the exempt homestead, and may receive the rents and profits thereof until the estate shall be settled, or until delivered by order of the court, to the heirs or devisees, and he shall keep in good tenantable repair all buildings and fences thereon which are under his control." This statute has been the subject of frequent construction. In Jones v. Billstein (1871), 28 Wis. 221, 228, this court when interpreting the statute, stated:
"As we understand this statute, it gives the personal representative the power to reduce the real estate to his actual possession should he think proper, or should the probate court direct him so to do, but it does not imperatively require him to take possession thereof, and until he does so the common-law right of the heir to the possession remains unimpaired."
In Flood v. Pilgrim (1873), 32 Wis. 376, at page 379, the court when referring to the statute said:
"The intent doubtless is, to place the whole estate, real and personal, in the possession and under the control of the executor or administrator in proper cases to enable him to pay debts against the estate and legacies. Where there are no such debts or legacies to be paid, there is no valid reason why the executor or administrator should have the possession of the real estate."
The statute was also construed in McManany v. Sheridan (1892), 81 Wis. 538, 51 N.W. 1011, and at page 542, the court said:
"This statute has been construed by this court in a number of cases, and the result of the decisions is that the right of the executor, as against the heir or devisee in possession, to the possession of the real estate is not absolute. Jones v. Billstein, 28 Wis. 221; Flood v. Pilgrim, 32 Wis. 376; Filbey v. Carrier, 45 Wis. 469. If there are no claims against the estate, or if all claims have been paid, the administrator or executor is held not entitled to possession as against the heir or devisee, even though the estate be not finally settled."
In Carpenter v. Fopper (1896), 94 Wis. 146, 147, 68 N.W. 874, the court declared:
"At the common law, and in the absence of a statute, the administrator has no right to the possession, even, of the real estate. Under the statute (R. S. sec. 3823) [now sec. 312.04] he has no right to the possession unless there are claims against the estate unpaid."
In Hinman v. Hinman (1905), 126 Wis. 191, 193, 105 N.W. 788:
"Real estate descends to the heir immediately upon decease of its owner, and no intervention of court or administrator to take intermediate title, as in the case of personal property, is necessary. Marsh v. Waupaca Co. 38 Wis. 250. Our statute (sec. 3823, Stats. 1898) has given a very limited right to an administrator to take possession of the real estate, but imposed no duty on him, except when its rents and profits are necessary in the settlement of the estate. It has been held that if there are no debts he has no right to take possession. Flood v. Pilgrim, 32 Wis. 376."
In Riedi v. Heinzl (1942), 240 Wis. 297, 3 N.W.2d 366, it was held that an administrator may sell the real estate of deceased when the available personal estate is insufficient to pay the expenses of administration, the funeral expenses, and debts of the deceased, or if the sale of the personal property would be inimical to the interests of the estate, or if the sale of the real estate would be for the best interest of the estate.
The only claim filed against the estate in the Wisconsin administration was settled and paid in 1948, and the funds for the settlement payment were provided by the Illinois executor. There was no need on the part of the administrator to have taken possession of the real estate, or to have collected rents therefrom, or to have sold the real estate for the payment of debts. While it appears that he attempted to take possession, he did not in fact do so. Possession at all times during this administration was in Gladys E. Fleishmann under her contract with the Illinois executor for the purchase of it. The administrator petitioned for the sale of the real estate in order to pay administration expense. The petition was denied by the court, and the administrator acquiesced in the denial. Manifestly, as indicated by his account, he was satisfied with the arrangement that the unpaid balance of the administration expense be paid to him by the Illinois executor. Clearly, there was no need for the sale in order to pay debts or administration expense. The court disallowed payment of the abstract charge and expense for publication of the notice of hearing on petition to sell. The petition for the sale was surplusage and of no effect.
The 1954 offer of Gladys E. Fleishmann addressed to the administrator for the purchase of the real estate at $2,400, and the placing of such a sum in escrow awaiting approval of the court, became ineffective when the court refused to authorize the sale. Objection was made with reference to the absence in the account of any charge for interest upon the item of $1,900 paid or due to the Illinois executor by Gladys E. Fleishmann. The administrator was not chargeable with such item. It does not appear that the fee to the administrator or that to his attorneys, as allowed by the court, were unreasonable.
The administrator did not appear in person at the hearing upon the final account. Evidence was presented relative to the seriously impaired condition of his health at the time. For such reason the court excused his presence and permitted his son, who had been familiar with the administration, to testify. Appellants maintain that under provision of sec. 317.05, Stats., they were entitled to an examination of the administrator under oath regarding his account and settlement of the estate. The subject concerning which they desired examination was his failure to collect an amount for rents and profits of the estate. The court ruled that such matter was irrelevant, for the reason of the previous denial of permission to sell the real estate. We find no error with regard to the court's ruling in such respect.
Appellants complain that the court's order of September 29, 1955, directing that there be stricken from the proposed bill of exceptions pages 1 to 17 of the transcript of the testimony, constituted prejudicial error. An analysis of the stricken part of the record shows that it consists of colloquy between court and counsel and pertained only to the question of licensing the administrator to sell the real estate. The order striking the material from the bill of exceptions, which was settled for the purpose of appeal upon a wholly different subject, was proper. No appeal had been taken from the order of September 29, 1955. As held in International Text Book Co. v. Samer (1913), 151 Wis. 570, 139 N.W. 315, an appeal from a judgment does not bring up for review in the supreme court orders made after judgment. Clearly, an appeal does not bring up orders made after the appeal itself is taken.
In its disposition of the administrator's petition for the sale of the real estate, the court noted that the will of decedent gave the Illinois executor full power of sale of the real estate, and that no license for its sale was required. On this appeal, much of the argument of appellants concerns the sale of the real estate by the Illinois executor. That matter was included in the court's consideration of the ancillary administrator's petition to sell the real estate, and was determined by the order denying the application. It is irrelevant to the subject matter of the instant appeal.
Finding no error with respect to the allowance of the administrator's account and his discharge, the judgment must be affirmed.
By the Court. — Judgment affirmed.