#### Wallber, County Judge, Respondent, vs. Wilmanns, imp., Appellant.

*December 16, 1902*

January *13, 1903.*

*Estates of decedents: Testamentary trustees: Executors: Accounting: Principal and surety: Action on executor’s bond: Appeal and error: Limitation of actions.*

1. Where, on petition of beneficiaries under a will, the county court cites the executor to appear, file his account, and show cause why a trustee should not be appointed and the funds in the executor’s hands paid over *to*him, the distinctive purpose of the proceeding is not changed, nor does the court lose its power to entertain and consider the whole matter and appoint such a trustee, although it does not do so until after a hearing on the executor’s account, to which is attached a petition for construction of the will, followed by an appeal by the executor from the order stating his account. At most, if an irregularity, it is not one of which the surety on the executor’s bond can complain.

2. Where an executor is also named as testamentary trustee under a will, his functions and duties as executor do not cease until his final account as such executor has been filed and allowed.

3. Where a county court has jurisdiction to settle and allow an executor’s account, such settlement and allowance are binding on the sureties on his bond.

4. Under sec. 4014, Stats. 1898 (providing that the county court may permit an action on an executor’s bond when the amount due has been ascertained and ordered paid, if the executor shall neglect to pay it when demanded), it is not necessary that a *devastavit*and default he determined against the executor before the commencement of an action on the bond.

5. An action against an heir or legatee of a surety on an executor’s bond is not barred because no claim was filed against the estate of the surety, where it appears that the executor’s account was not filed until after the surety’s estate was settled.

6. A question cannot be considered oh appeal in the absence of any findings, request for findings thereon, or exception that raises such question.

7. An executor’s liability continues until his account is fully settled and the estate fully administered.

8. Where no final order has been made distributing a decedent’s estate, recovery of the full amount found to be due from an *247executor may be bad against bis surety, in an action at law on bis bond, although tbe executor is a beneficiary under tbe will.

Appeal from a judgment of tbe circuit court for Milwaukee county: WaRBEN D. TabraNt, Circuit Judge.

*Affirmed.*

On September 13, 1878, tbe defendant James S. White was duly appointed executor of tbe estate of Mary Ann White, and on tbe same day duly qualified as such by accepting said trust and filing a bond in tbe usual form, signed by Frederick Wilmanns and F. S. Blodgett as sureties, in tbe sum of $20,000. Said bond was duly approved, and letters testamentary were duly issued. White thereafter entered upon tbe discharge of bis duties, and took possession of all tbe property of deceased, and converted it into money prior to October 1, 1884. Prior to tbe proceedings hereinafter mentioned, tbe last account of White as executor was filed in 1884. On October 1, 1896, two of tbe beneficiaries under tbe will made separate petitions to tbe county court for tbe purpose of requiring White to file bis final account, one of them asking that he be required to settle bis account, and pay over to a trustee, to be appointed, tbe moneys they were entitled to. Tbe citation was issued, but a bearing was delayed because of tbe disqualification of tbe county judge, but was finally beard by Judge BeldeN. On February 21, 1899, White filed bis account. Objections were filed thereto, and a guardian *ad Uiem*for certain minors was appointed. In October White attached a petition to bis final account, asking that a certain clause in Mrs. White’s will be construed. On December 13, 1899, an order was made by Judge Pebeles stating tbe executor’s account, charging him with $7,410.95 over disbursements, and construing Mrs. White’s will, which order was reduced to -writing on December 29th. On December 13th all tbe parties interested in tbe estate were present or represented, and tbe matter of tbe appointment of D. L. Jones as trustee was talked *248over, and virtually agreed upon, but no order was then entered. Later Mr. White appealed to the circuit court from the order stating bis account. The case was tried, and by the judgment of the circuit court the order of Judge Peebles was affirmed, and the case remanded. On September 7, 1900, the order appointing the Mr. Jones as trustee was made, and thereafter a bond was filed as required and letters of trust were issued. Jones, as trustee, made a demand upon White to pay over the sum in his hands as executor, which was refused. Thereafter the trustee made a petition to the county court setting out the former proceedings, the demand and refusal of White to pay over, and prayed leave to commence this action on White’s bond in the name of the county judge. Such leave was duly granted. In the meantime the surety Blodgett died insolvent. On January 12, 1891, the surety Wilmanns died testate, and his estate was closed, and his property assigned to the defendant *Marie Wilmanns*on March 18, 1892, and “prior to the filing of White’s account as executor, which estate amounted to more than $14,000. This action is to recover from *Mrs. Wilmanns*and the executor, White, the amount held by the latter hereinbefore mentioned. The defendants made separate answers, admitting many of the matters alleged in the complaint, but denying the rightful appointment of Jones as trustee, and setting up some matters that will be referred to in the opinion. The court found the facts, and by the ninth, tenth, and fifteenth findings found that- Jones was duly appointed as trustee, and that White had refused and neglected to comply with the terms of his bond as executor upon demand. Both defendants excepted to these findings. Judgment was entered for the plaintiff for $8,394.70 and costs, from which *Mrs. Wilmanns*takes this appeal.

Eor the appellant there was a brief by *Pierson W.*Halsey, attorney, and *Charles*Quarles, of counsel, and oral argument by *Mr. Halsey*and *Mr. George Lines.*

*249
      *William*Kaumheimer, attorney, and *D..Lloyd*Jones, of ■counsel, for the respondent.

BaedeeN, J.

1. Many questions are raised on this appeal, the chief of which is whether the county court of Milwaukee ■county had the right or jurisdiction to appoint Mr. D. L. Jones as trustee. We have been greatly aided in a solution of this question by the written opinion of the trial judge found in the record, but not printed, as it ought to have been. It requires little more than a statement of the facts to show that the defendant’s contention is without foundation. Much of -defendant’s argument is based upon false assumptions of what the record discloses. It appears that from 1884 to 1896 White,- the executor, made no accounting to the court. His •final account had never been presented or allowed. In •October, 1896, two of the persons interested in the estate petitioned that he be cited to appear and file his final account and ■show cause why he should not pay over the funds in his hands to a trustee. Such citation was issued, and he was directed to ■show cause why a trustee should not be appointed, etc. This set the machinery of the law in motion, and the fact that matters were delayed for some time did not change the distinctive purpose of the proceeding. The court had full jurisdiction of the proceeding, and no one is here complaining of want of notice who has any right to do so. Neither did the delay in procedure devest the court of its power to entertain and consider the matter. The different steps in the case of White’s thereafter filing an account and a petition to have the will construed, and his appeal thereafter, did not oust the court of the right to hear the whole matter, and the fact that eventual relief was secured by several orders in the case is not one that the appellant can take advantage of in this collateral way.

It does not alter the situation at all that White was testamentary trustee. His duties and functions as executor did not, in law, cease until his final account as such had been filed *250and allowed. See *Barney v. Babcock’s Estate,*115 Wis. 409, 91 N. W. 982. Tbe county court bad ample jurisdiction to settle and allow bis account, and sucb settlement and allowance are binding upon tbe sureties on bis bond. His duties as executor continued until be qualified as testamentary trustee, and, as it does not appear that be bad so qualified, be beld the money in bis' bands as executor until bis final account was settled. *Schinz v. Schinz,*90 Wis. 236, 63 N. W. 162. It abundantly appears that at tbe time tbe order allowing bis account was made, it was talked over that Mr. Jones should be appointed as trustee, and that Mr. White consented to that arrangement. Tbe fact that White took an appeal from sucb allowance and some little time intervened before tbe order of appointment of tbe trustee was actually entered, is not considered one that vitiates sucb appointment, or, if deemed an irregularity, is not one tbe appellant is in a position to take-advantage of.

2. Another point urged by appellant is that tbe judgment against her is void because a *devastavit*and default bad not first been determined as against tbe executor. There are-some things said in *Barth v. Graf.*101 Wis. 27, 37, 76 N. W. 1100, 1103, which would- seem to justify that contention.. This language is there used:

> “Anri yet in all sucb cases it would seem tbe breach of the-bond must be fixed by tbe judgment, decree, or finding of tbe court having jurisdiction, before an action will lie against the-sureties on tbe bond.”

This is tbe rule sustained by tbe great weight of authorities,. *in absence of a statute on the subject.*2 Brandt, Sur. (2d ed.) § 578. Tbe mistake we made was in overlooking the-fact that we have a statute on tbe subject. We think see. 4014,. Stats. 1898, fully covers tbe situation, and renders further discussion of tbe question unnecessary. Tbe statement in *Barth v. Graf,*referred to, must be considered as modified as to all eases coming within tbe puiwiew of sec. 4014. There *251are also very grave doubts of the question being before us because of tbe failure of tbe court to make any findings tbat fairly cover tbe question, and because of failure of appellant to raise it by any proper request to find, or exceptions. If tbe question is before us at all, it is considered tbat tbe amount tbat should go into tbe bands of tbe trustee bad been established by tbe court, and a demand and refusal of tbe trustee to pay over shown. Tbe order permitting tbe trustee to commence this action was one which might have been secured without notice, and was not open to collateral attack. *Roberts v. Weadock,*98 Wis. 400, 74 N. W. 93.

3. Another point urged with some confidence is tbat the right of action against tbe heir or legatee of tbe deceased surety, *Mrs. Wilmanns,*is barred, because no claim was filed against tbe estate of tbe deceased surety. Tbe surety died in-January, 1891, and tbe estate was distributed March 18, 1892. There are no findings, requests to find, or exceptions tbat raise tbe question. If tbe question were fairly presented, still we think tbe situation is not such as to call for an application of tbe statute. Tbe executor did not file bis annual account until long after tbe estate of Willmanns bad been settled, and no claim was in existence tbat could have been filed during tbe pendency of settlement. Tbe situation seems to-have been fully covered by what was said by this court in *Mann v. Everts,*64 Wis. 312, 25 N. W. 209, and *South Milwaukee Co. v. Murphy,*112 Wis. 614, 88 N. W. 583, against tbe appellant’s contention.

4. Another claim is tbat tbe claim against *Mrs. Wilmanns*is barred by sees. 4014 and 3968, which are claimed to operate as statutes of limitation. This question was raised by tbe answer, yet, as in tbe cases before mentioned, there is no finding, request to find, or exception which present tbe question. We note on passing, however, tbat tbe executor’s liability is-held to continue until his account is settled and tbe estate-fully administered. Gary, Prob. Law, § 253, note 110,. *252-§ 480, note 25; 3 Woerner, Adm’n, 62. And see *Barney v. Babcocks*Estate, 115 Wis. 409, 91 N. W. 982. The judgment of the county court that White held the sum in controversy as executor is binding upon the sureties, and cannot be ¡impeached in a collateral proceeding.

5. Finally, appellant objects to the amount of the judgment against her, because: First, the judgment included the income payable annually to the brothers and sisters of the ■executors; and, second, because, under the terms of his mother’s will, he owns a one-fourth interest in the estate he 'holds. As to the first proposition, the finding of the county ■court is conclusive. It must be presumed that the court took into consideration all expenditures made by the executor up ■to the date his account was settled in 1899, and confirmed on .appeal in 1900. The binding character of this judgment has already been alluded to. The answer to the second proposition is evident from the fact that, no final order having been made settling or distributing Mrs. White’s estate, the trial ■ court had no means of knowing how much would be the share of each distributee. This being an action at law on the bond, the court could not usurp the functions of the county court, .and make a distribution of the estate held by the executor. When the matter comes before the proper tribunal, no doubt ■the court will protect *Mrs. Wilmanns*from any loss on account of any claim of White to the fund in controversy.

Many other questions have been raised and discussed by the appellant, but which are without any foundation in the rec■ord. Any that are not here noticed are deemed to have been «correctly decided by the trial court.

*By the Gourt.*— Judgment is affirmed.