#### City of Fond du Lac, Appellant, vs. Estate *of*Otto, Respondent.

*January 9*—

January *28, 1902.*

(1) *Corporations: Execution of instruments: Form of signature.*(2-4) *Taxation: Estates of decedents: “Administrator:” Personal property omitted from previous assessments.*

1. Where it appears in the body of an instrument that a corporation is the obligor or grantor, the instrument is well executed by the corporation if signed simply with the signature of the proper officer or officers with his or their official title or titles.

2. A special administrator is an administrator within the meaning of sec. 1044, Stats. 1898, requiring personal property in the possession of an administrator to be assessed to him.

3. Under sec. 1059, Stats. 1898, as amended by ch. 50, Laws of 1899, taxes on personal property omitted from assessment during previous years cannot be assessed in the assessment district *40where the ■ deceased owner had resided, when, on May 1st of the year in which the assessment was made, the personal property of his estate was in the hands of an administrator who resided in a different assessment district;

Appeal from a judgment of tbe circuit court for Fond du Lac county: Michael KjewaN, Circuit Judge.

*Affirmed.*

Tbe plaintiff city filed its claim in tbe county court of Fond du Lae county against tbe estate of one Charles Otto, deceased, to recover taxes alleged to be owing by said estate. Tbe claim was disallowed by tbe county court, and from sucb disallowance tbe city appealed to tbe circuit court, where tbe action was tried without a jury.

Tbe facts were undisputed, and were found by tbe court substantially as follows: (1) That during tbe years 1896, 1897, and 1898, and up to April 6, 1899, Charles Otto was a resident of the city of Fond du Lac, and owned certain twenty shares of stock of tbe Calumet & Hecla Mining Company, also a mortgage for $700, and bank deposits in said city of $1,300, and that said Charles Otto died April 6, 1899; (2) that all of said personal property was omitted from assessment for tbe years 1896, 1897, and 1898 by mistake, and said Otto paid no personal property tax for said years; (3) that one C. H. Estabrooks was appointed special administrator of tbe estate of said Charles Otto, April 12, 1899, and ■on June 7, 1899, letters testamentary were also issued to said Estabrooks, and on August 9, 1899, be was discharged as special administrator, and is now acting as executor of said estate, and was during all of said, time a resident of tbe town of Fond du Lac, and not of tbe city; (4) that Estabrooks, as special administrator, received said personal property when appointed, and kept tbe same until be sold said mining stock, tbe latter part of May, 1899, at which time be paid over to tbe legatees under Otto’s will tbe proceeds of sucb sale, without any order of distribution by tbe court, and that no order of distribution of said estate bad been entered at tbe time of *41tbe trial; (5) that in 1899 tbe assessors of said city did not .place on tbe assessment roll any personal property belonging to .said estate before said roll was laid before tbe board of review; (6) that August 2, 1899, tbe board of review gave written notice> to said executor and to tbe beirs of said Otto of tbeir intention to assess said estate for tbe years 1896, 1897, and 1898 upon a valuation of $11,000, and thereupon, on August •5, 1899, said executor appeared before tbe board and stated under oath that said deceased owned said mining stock during five or six years before bis death, and that tbe witness bad sold tbe same for tbe sum of $16,000, and no other evidence was offered by the executor before tbe said board of review :on tbe subject, and no-other evidence as to tbe value of said mining stock was introduced; (7) that after bearing such •evidence, and some further evidence showing that Otto during .the years 1896, 1897, and 1898 owned a mortgage of $700, .and bank deposits of $1,300, said board of review on tbe 7th .of August, 1899, placed upon said assessment roll an assessment against tbe estate of said Otto for $9,000 for each of tbe years 1896, 1897, and 1898, intending thereby to assess said mining stock and.other property for said years; (8) that said assessment roll was not verified by tbe assessors by affidavit, •as required by sec. 1063, Stats. 1898, but that said affidavits have been signed by said assessors, and tbe oath in fact administered by tbe city clerk, but that tbe jurat bad never been signed by said clerk or by any officer; (9) that tbe evidence •does'not show that said property was assessed at more than its true value, nor that .the assessment exceeded tbe percentage upon which other personal property of like nature was assessed in said city for tbe years 1896, 1897, and 1898, nor •that tbe tax was unjust or inequitable; (10) that no tax for ■tbe year 1899 was levied or assessed by said city against said 'estate or said executor or special administrator; (11) that ■a tax was entered on the tax roll of 1899 against tbe estate of •Charles Otto as follows: Eor tbe year 1896, $270; for tbe *42year 1897, $270; for the year 1898, $315, — which tax has not been paid; (12) that a claim to recover said unpaid taxes was filed by the city against the estate of Charles Otto in the county court, and said claim was dismissed.

The court concluded from these facts that the action of the-board of review was without authority of law, and that the pretended assessment of a tax based thereon was void; and judgment was entered dismissing the claim, with costs. From this judgment the plaintiff appeals.

For the appellant there was a brief by *J. M. Gooding,*city-attorney, and a supplemental brief and oral argument by *O. II. Eche,*of counsel.

For the respondent there was a brief by *Giffiii & Sutherland,*and oral argument by *D. D. Sutherland.*

WiNSLOw, J.

It was first claimed by respondent that the-circuit court acquired no jurisdiction of the appeal from the county court, because the undertaking was defective. The-undertaking, after reciting the intention of the city to appeal, proceeded as follows:

> “Now, therefore, we, the city of *Fond du Lac,*of said, county, and W. H. Coughlin and T. E. Ahern, of said city,, do undertake, in the sum of $250, that said city of *Fond dw Lac*will diligently prosecute its appeal to effect, and to pay all damages and costs which may be awarded against him on-such appeal.

> “Attest:

> * F. A. Baetlett,

> City Clerk.

> J. B. Bechaud,

> Acting Mayor. W. BE. CoughliN. T. E. AheeN.”

It is claimed that this is not the obligation of the city, but: simply the personal obligation of Bechaud and Bartlett; that,, in order to bind the city, it should have been signed, “The . City oe FoNd du Lac, by J. B. Bechaud, Acting Mayor.”' This contention cannot be sustained. While the method suggested would doubtless have been a technically correct methodi *43of execution of a corporate obligation, it is now well settled that, where it appears in the body of the instrument that the corporation is the grantor or obligor, then the instrument is well executed by the corporation if signed simply with the signature of the proper officer or officers, with his or their official title or titles; and, indeed, this method is now almost universally used. 4 Thompson, Corp. § 5090; Devlin, Deeds, § 335; *Haven v. Adams,*4 Allen, 80; *Morris v. Keil,*20 Minn. 531.

Proceeding to the merits of the case, the question is presented whether, under sec. 1059, Stats. 1898, as amended by ch. 50, Laws of 1899, taxes upon personal property which have been omitted during previous- years may be assessed and recovered against the estate of the deceased owner, under the circumstances shown in this case. It was held in *State ex rel. Davis & S. L. Co. v. Pors, 107*Wis. 420, that personal property omitted in one year may be assessed in the following, year, under sec. 1059 aforesaid, notwithstanding the fact that it has passed out of the ownership of the person assessed, or out of existence. A different ease, however, is here presented. The property here under consideration is property which must be assessed in the assessment district where the *oivner*resides. Stats. 1898, sec. 1040. It must be assessed as of the 1st day of May in the year in which the assessment is made. Stats. 1898, sec. 1033. It must also be assessed to the owner, sáve as provided in sec. 1044. If in the hands of an executor or administrator on the 1st of May, it must be assessed to such executor or administrator. In but one case can it be assessed to'the estate of the deceased owner, and that is when no executor or administrator has been appointed before the 1st day of May. In the present case the fact is undisputed that before the 1st day of May, 1899, one Estabrooks had been appointed special administrator of the estate, and was in possession of the property of the estate at that date. A special administrator is doubtless an administrator, within the mean*44ing of the word as used in sec. 1044. *Hayden v.*Roe, 66 Wis. 288. In tbis case, therefore, the contingency had not arisen which allows the property to be assessed to the estate. There was an administrator duly appointed on the 1st day of May, and the property must be assessed to that administrator. But the administrator did not reside in the city of *Fond du Lac.*He resided in another assessment district. Therefore the city could make no assessment against him of property which must be assessed at the residence of the owner. The conclusion seems inevitable that the city could not make the reassessment attempted in this case. It could not assess the administrator, because he was a nonresident. It could not assess the estate, because there was an. administrator in possession on the 1st day of May;

*By the Court.*— Judgment affirmed.