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Estate of Eannelli

Supreme Court of Wisconsin
Dec 4, 1956
80 N.W.2d 240 (Wis. 1956)


November 7, 1956 —

December 4, 1956.

APPEAL from an order of the county court of Waushara county: BYRON B. CONWAY, County Judge of Wood county, Presiding. Modified and, as modified, affirmed.

For the appellant there was a brief and oral argument by Vaughn S. Conway of Baraboo.

For the respondents there was a brief by Chester J. Niebler of Milwaukee, attorney, and M. J. Paul of Berlin, and Marshall J. Herro of Milwaukee, both of counsel, and oral argument by Mr. Niebler.

Proceedings instituted in behalf of Delbert Eannelli, administrator of the estate of Anthony Eannelli, deceased; Paul Eannelli, administrator of the estate of Massemino Eannelli, deceased; and Donato Eannelli and Mary Eannelli, his wife, the parents of Massemino Eannelli; for an order providing as follows:

(1) Revoking the letters of administration granted to Angeline Venci in the estate of Anna C. Eannelli, deceased, under date of July 21, 1951 ;

(2) Granting letters of administration to Delbert Eannelli in said estate; and

(3) Ordering Angeline Venci to pay over to the newly appointed administrator of the Anna C. Eannelli estate the sum of $5,000, and such other funds as may have come into her possession.

Anna C. Eannelli, her husband, Massemino Eannelli, and their two sons, died on June 12, 1951, the victims of a common disaster. Pursuant to a petition filed in the county court of Waushara county alleging simultaneous death of all four members of the Eannelli family, Angeline Venci, a sister of Anna C. Eannelli, was appointed administratrix of the estate of Anna C. Eannelli, and letters of administration were issued to her upon her qualifying by filing bond in the amount required by the court. Originally all the assets of Mr. and Mrs. Eannelli were inventoried and appraised in the Massemino Eannelli estate. Such inventory, in addition to listing the parcels of real estate owned by Massemino, or in which he had an interest, inventoried personal property appraised in excess of $90,000. A large portion of such inventoried personal property consisted of the assets of the Granite Lumber Company, which Massemino had operated at the city of Red Granite as a sole proprietor.

Angeline Venci, administratrix of the estate of Anna C. Eannelli, advanced a claim in the Massemino Eannelli estate that the Granite Lumber Company had been operated as a partnership, the partners being Anna and Massemino. Whether this was done by filing a claim or formal petition, or merely by an informal demand made upon the administrator of the Massemino estate, does not appear from the record. Petitions for determining heirship were filed in both the estates of Anna C. Eannelli and Massemino Eannelli. Angeline Venci, administratrix of the Anna C. Eannelli estate, also filed a petition in the estate of Massemino Eannelli for determination of the property inventoried in the latter estate which properly belonged to the Anna C. Eannelli estate. Donato Eannelli and Mary Eannelli, his wife, intervened in such proceedings claiming that the son, Anthony, had survived his parents and brother, and that such intervenors, as the paternal grandparents of Anthony, were, therefore, the ultimate distributees of both the Anna C. Eannelli and the Massemino Eannelli estates.

By stipulation of all of the parties, all of the above-enumerated proceedings in both the Anna C. Eannelli and the Massemino Eannelli estates were consolidated for trial. Such trial commenced January 21, 1953, and continued thereafter from day to day until the taking of testimony was concluded on February 7, 1953. A judgment was entered by the trial court on May 1, 1953, in both the Anna C. Eannelli and Massemino Eannelli estates, adjudging as follows:

(1) That Massemino Eannelli, Anna C. Eannelli, and George Eannelli died simultaneously and intestate on June 12, 1951, survived by Anthony Eannelli, who also died intestate on June 12, 1951;

(2) That Anthony Eannelli was the sole heir and nearest of kin of Massemino Eannelli and Anna C. Eannelli;

(3) That Anthony left as his sole heirs and nearest of kin, Donato Eannelli and Mary Eannelli, his paternal grandparents; and that said grandparents are the eventual owners of the residue of the estates of Anna C. Eannelli and Massemino Eannelli, and, therefore, interested parties in the proceedings;

(4) That the business known as the Granite Lumber Company was a sole proprietorship operated by Massemino Eannelli, and that the assets of such business were properly inventoried in the Massemino Eannelli estate; and

(5) That certain property inventoried in the Massemino Eannelli estate was properly the property of the estate of Anna C. Eannelli, which consisted partly of an undivided one-half interest in a parcel of real estate, and certain personal property (the total value of such interest in real estate and personalty [personality] as of June 12, 1951, being $10,451.10); and the administrator of the estate of Massemino Eannelli was directed to assign said property to Angeline Venci, administratrix.

Angeline Venci, administratrix of the estate of Anna C. Eannelli, did not appeal from said judgments of May 1, 1953, within the sixty-day period provided therefor by sec. 324.04 (1), Stats. However, on June 25, 1953, she did petition the trial court for an order extending the time for appeal, and in the alternative for a new trial in the Anna C. Eannelli estate, but no such application was filed in the estate of Massemino Eannelli. See Estate of Eannelli (1954), 266 Wis. 257, 63 N.W.2d 108, and Estate of Eannelli (1954), 266 Wis. 263, 63 N.W.2d 111. By order dated September 2, 1953, the county court denied said application for extension of time of appeal and for a new trial. On appeal this court reversed said order and remanded with directions to grant the appellant administratrix a reasonable time to perfect the appeal and settle the bill of exceptions. Estate of Eannelli (1954), 266 Wis. 257, 63 N.W.2d 108.

Angeline Venci, administratrix, thereafter did perfect her appeal to this court. Such appeal was taken not only from the judgment entered May 1, 1953, in the estate of Anna C. Eannelli, deceased, but also from an order of the trial court dated April 23, 1954, denying a second motion made by said administratrix for a new trial, which second motion for a new trial had been grounded upon certain alleged newly discovered evidence. On such appeal this court affirmed both the judgment and the order appealed from. Estate of Eannelli (1955), 269 Wis. 192, 68 N.W.2d 791. The administratrix had also moved for a new trial on the ground of newly discovered evidence in the Massemino Eannelli estate, and, when such motion was denied, appealed to this court. In such appeal the trial court was also affirmed. Estate of Eannelli (1955), 269 Wis. 218, 68 N.W.2d 804.

Following this court's decisions in such last-mentioned appeals, the instant proceedings were instituted for the revocation of the letters of administration to Angeline Venci and to compel her to pay over to the new administrator to be appointed the $5,000 proceeds received through the sale of the parcel of real estate in which Anna C. Eannelli had owned an undivided one-half interest at the time of her death, this being the only asset of the estate which had come into the hands of said administratrix. The administratrix thereafter filed a final account which disclosed that she had disbursed the entire $5,000, and in addition thereto had incurred unpaid administration expenses of $17,761.80. The petitioners entered objections to all of the disbursements and expenses listed in the account. A hearing was held upon the application of petitioners and said objections to the final account, at which considerable testimony was taken and many exhibits received in evidence.

Under date of November 21, 1955, the trial court filed its memorandum opinion together with findings of fact and conclusions of law. A summary of the material findings is as follows:

(1) That the sole heir-at-law of Anna C. Eannelli was her son, Anthony;

(2) That the next of kin entitled to the administration of her estate were Donato Eannelli and Mary Eannelli, paternal grandparents of Anthony;

(3) That Angeline Venci had been originally appointed administratrix and had acted as such until August 13, 1955, upon an erroneous petition alleging simultaneous death;

(4) That the only inventory filed by Angeline Venci consisted of a copy of the inventory in the Massemino Eannelli estate filed by her on June 23, 1953, some weeks after the trial court had previously determined what property listed therein was inventoriable in the Anna C. Eannelli estate;

(5) That on June 10, 1953, Angeline Venci had received $5,000 cash which was the only cash or personal property that has come into her hands;

(6) That said administratrix had paid out the entire sum of $5,000 in attorney fees, expenses incurred in the employment of a stenographer to transcribe testimony taken at various hearings, in the employment of accountants and other expenses, none of which was for the benefit of the estate;

(7) That she has not paid funeral expenses nor did she pay any real-estate taxes;

(8) That the evidence supplied by her in support of her charges in her account is not consistent and does not support such charges;

(9) That Angeline Venci originally employed William Belter as attorney for her administration, but that Mr. Belter had withdrawn from active participation in the administration of the estate on February 9, 1953; and

(10) That in December, 1951, Angeline Venci had employed Vaughn S. Conway of Baraboo, Wisconsin, to prosecute a claim against the Massemino Eannelli estate, which claim was eventually denied.

The conclusions of law directed that the letters of administration originally issued to Angeline Venci be revoked nunc pro tunc, that Delbert Eannelli be appointed administrator, that letters of administration de bonis non be issued to him upon filing a bond in the sum of $5,000, and that Angeline Venci be directed to turn over to the new administrator the said sum of $5,000. An order in conformity with such conclusions of law was entered November 28, 1955. From such order Angeline Venci, administratrix, has appealed.

The two issues on this appeal are:

(1) Did the county court have the power to revoke the letters of administration originally issued to Angeline Venci; and

(2) Is the said administratrix entitled to a charge against the assets of the estate for any of the disbursements made and the expenses incurred by her as listed in the final account?

Sec. 311.12, Stats., appears to be the only statute dealing with the subject of revocation of letters of administration. Such statute authorizes the county court to revoke letters of administration in a situation where a will of the deceased is duly proved and allowed by the court. The attorney for the appellant administratrix contends that the county court has no power to revoke letters of administration except for the single ground stated in such statute. We cannot agree. This court in the early case of In re Fisher (1862), 15 Wis. *511, *521, declared, "The county court, sitting as a court of probate, may, at any time, in furtherance of justice, revoke an order which has been irregularly made or procured by fraud." See also Brunson v. Burnett (1849), 1 Chand. 136, 2 Pin. 185, 190, holding that the authority of the county court to revoke letters of administration is inherent to the general powers of the court, and 21 Am. Jur., Executors and Administrators, pp. 455, 456, sec. 144.

The words "irregularly made" contained in the above quotation from In re Fisher, supra, undoubtedly refer to jurisdictional rather than nonjurisdictional error. Except for the allegation in the original petition for administration that there had been simultaneous death of Anna, Massemino, Anthony, and George Eannelli, the county court had no jurisdiction to have issued letters of administration to Angeline Venci, administratrix, on July 21, 1951. Inasmuch as such deaths were not simultaneous because of Anthony having survived the other three, the petition had not been made by an heir or next of kin. It is, therefore, our considered opinion that the trial court had no discretion but to revoke such letters of administration previously issued to Angeline Venci.

However, such revocation of letters of administration does not determine the question of whether Angeline Venci is entitled to credit for any of the disbursements made and expenses incurred while administering the estate prior to such revocation. This is because of the provisions of sec. 311.14, Stats., which provide as follows:

"All acts of an executor or administrator as such, before the revocation of his letters testamentary or of administration, shall be as valid to all intents and purposes as if such executor or administrator had continued lawfully to execute the duties of his trust."

An examination of Angeline Venci's final account, of the testimony taken, and of the exhibits offered to support the disbursements made and expenses incurred by her, for which she claims credit in her account, discloses that, outside of a disbursement in the sum of $2,564.78 for the accountants' audit of the books and records of the Granite Lumber Company, most of the other amounts claimed are for attorneys' fees and disbursements in conducting the litigation to determine which of the four members of the Eannelli family killed in the accident of June 12, 1951, had survived. Such litigation resulted in a determination that the son, Anthony Eannelli, was such survivor so that the net estates of both Anna and Massemino Eannelli will ultimately be distributed to Anthony's paternal grandparents, Donato and Mary Eannelli. Angeline Venci devoted her efforts in such litigation to an attempt to establish Anna C. Eannelli as the survivor so that Angeline Venci and her sisters and brothers, as the heirs and next of kin of Anna, would take all the net assets of the Anna C. and Massemino Eannelli estates. By seeking to charge the attorney fees and disbursements of her counsel in such litigation against the assets of the Anna C. Eannelli estate, Angeline Venci, in effect, is endeavoring to achieve such reimbursement at the expense of property equitably owned by Donato and Mary Eannelli. Such a result appears to us to be highly incongruous because it, in effect, would be requiring the successful litigants to pay the expenses of their defeated adversary.

In so far as litigating heirship in the Anna C. Eannelli estate is concerned, Angeline Venci in her capacity as administratrix was in reality not an interested party but a mere stakeholder. As administratrix charged with the duty of preserving and protecting the assets of the estate, she should not have expended the estate's funds in a fight between two sets of conflicting heirs to determine who should inherit the estate. There, therefore, was a manifest conflict in interest between the roles played by her as an heir interested in the outcome of the litigation and as administratrix.

In Estate of Donges (1899), 103 Wis. 497, 518, 79 N.W. 786, this court stated that "courts should be cautious in allowing for services ostensibly rendered to executors, but in spirit and effect rendered to one of the opposing interests, which should bear its own expenses." See also Estate of Dennett (1929), 200 Wis. 84, 227 N.W. 280.

The situation in the instant case is complicated by the fact that the litigation over the question, of which member of the four members of the family involved in the fatal accident survived, affected the determination of heirship in the Massemino Eannelli as well as the Anna C. Eannelli estates. If Anna were the last survivor, then her estate would have been entitled to receive the distribution of the net assets of the Massemino Eannelli estate. From this standpoint the administratrix of the Anna C. Eannelli estate did have an interest to protect. However, because the determination of heirship in both estates was consolidated for purposes of trial it is impossible to separate Angeline Venci's role as an individual, interested in the outcome of the heirship determination in the Anna C. Eannelli estate, from that of an administratrix seeking to have such estate established as the ultimate distributes of the Massemino Eannelli estate. Because of the obvious conflict of interest present, Angeline Venci should not have proceeded as administratrix to contract for legal services to conduct such litigation, and to incur the large expenditures for the disbursements of counsel incident to such litigation, without first having formally presented the matter to the county court and requested the court's instructions in the matter.

The decision in State ex rel. Peterson v. Circuit Court (1922), 177 Wis. 548, 554, 188 N.W. 645, makes it clear that in any case where a personal representative of an estate is presented with a situation, in which there is a reasonable doubt as to his right to take certain contemplated action, he should apply to the court for instructions. In the opinion in such case, the court stated:

"In administering the property of an intestate an administrator's functions, like those of an executor, are in the nature of those of a trustee, and he has at all times the right, and in many instances it becomes his duty, to apply to the court for direction and guidance."

An excellent statement of the law on this point is to be found in 1 Gary, Wisconsin Probate Law (5th ed.), p. 267, sec. 284, as follows:

"An executor or administrator, being an officer or `arm' of the court, has the right to apply to the court which appointed him for advice or authority when reasonably in doubt as to what course of action to pursue. In some instances, in fact, it is not only the right but also the duty of the representative to apply for direction and guidance, and it is very unwise to fail to do so if there is a chance of liability and doubt as to right or power to act as desired. Such applications may be, and usually are, made ex parte and without notice to those in interest. The ruling made on an ex parte application is not binding and conclusive upon those in interest and does not preclude subsequent attack upon an act of the executor or administrator in reliance upon the order of the court. As a general proposition, however, an executor or administrator acting according to directions of the court after duly presenting the facts, though without notice to others in interest, is protected against liability, unless the order was beyond the jurisdiction of the court."

Angeline Venci's final account discloses payment to Attorney Vaughn Conway of $1,500 to apply on attorney fees and for $482.47 disbursements made by him, and $407.75 paid directly by the administratrix to one Elvira Whalen for reporting the original trial. In addition the account shows as unpaid a charge of $16,307.42 for attorney fees and disbursements to Conway, and $807.19 to Attorney William Belter for attorney fees and disbursements. At the hearing on the account, Conway gave the following breakdown of the $16,307.42 item:

Services 4 days in the supreme court at $150 per day .............................. $ 600.00 13 1/2 days in the trial courts at $100 per day .............................. 1,350.00 81 days of office work and investigation at $75 per day ...................... 6,075.00 396 1/2 days of miscellaneous work at $10 per hour ......................... 3,965.00 183 letters sent at $3 each ........ 549.00 177 letters received at $2 each .... 354.00 ---------- $12,893.00 Disbursements as itemized in an exhibit submitted ............ 3,414.42 Total ........ $16,307.42 While the final account indicated that the entire $16,307.42 was still due, an itemized statement of the fees and disbursements remaining unpaid, which Conway filed as an exhibit at the hearing, credited thereon the $1,500 previously advanced to him thus reducing the balance due to $14,807.42. However, at such hearing Conway offered to accept $4,000 in full settlement of his unpaid fees and disbursements.

An exhibit received at the hearing disclosed that a breakdown of the $807.19 claimed to be due Belter consisted of $756.79 fees and disbursements of $50.40, the disbursements being itemized but not the charge for fees. Of Belter's disbursements $9.40 was for publication of notices in the probate proceedings, and $16 covered premiums on the administratrix's bond. Such $25.40 constituted a proper charge and should be allowed against the estate as should the $40 expended July 10, 1954, by Conway for bond premium.

It is our considered judgment that no attorneys' fees or disbursements in litigating the survivorship issue should be allowed against the estate. This is because of Angeline Venci's personal interest in the outcome coupled with her failure to secure any advance authorization from the court to contract for the same.

At the original trial of the survivorship issue there was also tried the issue of what assets mentioned in the Massemino Eannelli estate were properly assets of the Anna C. Eannelli estate, and, as embraced therein, whether Anna C. Eannelli was a partner in the Granite Lumber Company. Upon a review of the record in this case, and of additional facts set forth in the appendices of the printed briefs in the former appeals, we are satisfied that $350 would be a liberal amount to allow Attorneys Conway and Belter for their services in preparation and trial of such issue, and that the administratrix should be entitled to a credit for the same in her final account. In addition, a further credit should be allowed in the sum of $75 for Belter's incidental services in the estate, such as drafting the papers for the appointment of the administratrix and giving notice to creditors.

The administratrix in her account requests payment of commissions and per diems in the sum of $276.99, mileage allowance of $370.20, telephone and telegraph charges of $107.49, motel expense of $42, and "inventory expense" of $58. Under the facts of this case, the allowance of any compensation and expenses lies within the sound discretion of the county court, and that court has seen fit to disallow the same in toto. A listed expenditure of $45 for premiums on her bond as administratrix, substantiated by canceled check, is a proper charge against the estate and should be allowed.

There remains for consideration the disbursement made to Kimball, Rothman Company, certified public accountants of Madison, in the sum of $2,564.78 for an audit of the books and records of the Granite Lumber Company. Before incurring such expenditure, the administratrix applied to the county court for an order authorizing the same. Pursuant to such application the county judge under date of August 1, 1952, entered an order authorizing the administratrix to employ such accountants to make such audit. Such order provided "that the reasonable charges of said accountants for said audit, subject to the approval of the court herein, be paid as an expense of administration of the estate of Anna C. Eannelli." The uncontradicted testimony of Mr. Kimball, senior member of such accounting firm, given at the hearing on the account of the administratrix, established the reasonableness of the charges aggregating $2,564.78 for the making of such audit. There is no evidence that the administratrix acted in bad faith in seeking such order of the court, and such order, therefore, affords a complete protection to her in so far as this expenditure is concerned. The fact that such audit viewed in retrospect proved to be of no value to the estate is immaterial.

A restating of the administratrix's account on the basis of our decision herein results as follows:

Dr. Cr. Amount received ................ $5,000.00 Disbursements made and expenses incurred properly chargeable to the estate: Attorney fees of Vaughn Conway and William Belter for litigating issue of inventory and lumberyard partnership in Massemino Eannelli estate ......................................... $ 350.00 Attorney fees of Belter for services rendered in probating of estate ................... 75.00 Bond premiums paid by administratrix ................ 45.00 Bond premiums paid by Conway ........................ 40.00 Bond premiums paid by Belter ........................ 16.00 Publication costs ................................... 9.40 Cost of Kimball, Rothman Co. audit authorized by court ............................... 2,564.78 Balance for which administratrix is accountable to successor administrator ............ 1,899.82 ------------------------ $5,000.00 $5,000.00

The instant appeal was perfected January 26, 1956. Thereafter, late in April, 1956, the respondents moved this court to dismiss the appeal for failure of counsel for the appellant administratrix to have caused the record to be filed in this court within the time required by Supreme Court Rule 4 (sec. 251.254, Stats.). Under date of May 4, 1956, such motion was denied upon condition that appellant pay $25 motion costs, which condition was complied with. Subsequently, what purported to be the record in this case was filed with the clerk of this court on September 20, 1956. Prior to such date the appeal had been scheduled to be argued on October 11, 1956, the usual warning notice having been mailed to appellant's counsel at least sixty days prior thereto stating that the case was likely to be set for argument at the October assignment, and the customary post-card notice of the exact date of argument having been mailed to counsel at least thirty days prior to October 11, 1956. Appellant's counsel, without making any attempt to get out a brief and appendix, applied to this court for a continuance, which motion was heard on October 9, 1956. At such hearing the motion was granted on condition that appellant pay respondents $50 motion costs, and counsel were told in open court that the appeal would be set for argument at the November assignment if at all possible. It was thereafter scheduled for argument on November 7, 1956.

Not even a typewritten brief or appendix was served by appellant's counsel upon the attorneys for respondents prior to argument. Two days prior to argument, on November 5, 1956, the clerk of this court received for filing from the clerk of the trial court a supplemental return of record containing such essential documents as the respondents' petition for the revocation of the letters of administration originally granted to appellant, the appellant's final account, the copy of the inventory in the Massemino Eannelli estate filed by appellant in the Anna C. Eannelli estate, the trial court's memorandum decision of November 21, 1955, and the findings of fact and conclusions of law bearing the same date. On the day of the argument appellant's counsel handed to one of respondents' attorneys his check for $50 representing the costs imposed by this court's order of October 9, 1956, as a condition for granting a continuance. In the meantime, handicapped as they were by having received no brief or appendix from appellant's counsel, the attorneys for respondents prepared and served a printed brief prior to argument. The printed brief and appendix of appellant was not filed in this court until November 13, 1956.

With respect to the failure to cause essential portions of the record to be filed with the clerk of this court until two days prior to the adjourned date of the argument, appellant's counsel attempted to place the blame for this upon the inexperience of the clerk of the trial court. There seems to be a fairly widely held belief among some lawyers that counsel for an appellant has no duty to see that the clerk of the trial court transmits a proper record to this court. On the other hand, many careful attorneys do personally supervise the making up of the record and its certification and transmittal to this court. We are of the opinion that this is the duty of the lawyer taking the appeal, and that he should not be permitted to escape the responsibility resulting from a faulty record being transmitted by attempting to blame the clerk of the trial court for such failure.

The attorneys for respondents have moved that the appeal be dismissed for the flagrant failures to comply with the rules of this court governing appeal procedure. However, we believe that it would work a great injustice upon Angeline Venci to punish her for the dereliction of her counsel by granting such motion. Because of such infractions of our rules, we do exercise our discretion to deny costs to appellant even though she has achieved substantial relief by the appeal. By the Court. — The order appealed from is modified so as to reduce the amount that the appellant administratrix is required to pay over to the successor administrator from $5,000 to $1,899.82, and, as so modified, the order is affirmed. No costs are to be taxed and the appellant shall pay the clerk's fees.

Summaries of

Estate of Eannelli

Supreme Court of Wisconsin
Dec 4, 1956
80 N.W.2d 240 (Wis. 1956)
Case details for

Estate of Eannelli

Case Details

Full title:ESTATE OF EANNELLI: VENCI, Administratrix, Appellant, vs. EANNELLI…

Court:Supreme Court of Wisconsin

Date published: Dec 4, 1956


80 N.W.2d 240 (Wis. 1956)
80 N.W.2d 240

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