#### Palmer, Administrator, Respondent, vs. O’Rourke, Appellant.

*January 9*

January *29, 1907.*

*Executors and administrators: Title to personal estate: Right to assets: Possession by heir: Trover and conversion: Pleading: Complaint: Demurrer: Limitation of actions: Death of party entitled ,to sue: Suspension pending appointment of administrator.*

1. Upon tlie death of any person possessed of personal estate the legal title thereto and right to possession thereof vests in his personal representative and can only reach the heirs, ultimately entitled thereto, by due course of administration.

2. In the absence of some sufficient equity in favor of an heir who has possessed himself of personalty of a decedent, the mere fact of his having an equitable interest therein as such heir does not deprive the personal representative, duly appointed to administer the estate of which such personalty forms the whole or a part, of an absolute right to recover the value thereof from such heir in case he has converted the same to his own use.

3. In an action to recover money claimed to have been converted, the complaint alleged that plaintiff’s intestate instructed defendant to carry a sum of the intestate’s money to a bank and deposit it in the bank to her account; that the defendant deposited it in the names of “M. O. or H. J. O.,” the decedent and defendant, respectively; that defendant was an heir of decedent; and that the defendant thereafter, without authority and by falsely representing to the contrary, withdrew such deposit, part in the lifetime of decedent and part after her death. *Held,*that the complaint stated a cause of action although it showed that defendant was entitled, as heir, to receive one half the residue of the estate of decedent left after the payment of all claims allowed against the estate and the expenses of administration.

*5084. In suck case the reasonable inference from such allegation was that tbe money was deposited either in tbe name of decedent, or in the name of defendant as tbe money of tbe decedent.

5. So construed such complaint is *held*not to show any wrongful conversion by defendant at tbe time tbe deposit was made.

6. In an action against an heir for conversion of money deposited in a bank, tbe complaint alleged that defendant wrongfully withdrew from tbe bank and converted to bis own use part of tbe money within one year before decedent’s death, and that tbe balance of tbe deposit was so withdrawn and converted six days after her death, both conversions occurring more than seven years and less than eight years before an administrator was appointed. *Held:*

(1) As to tbe first withdrawal and conversion tbe right of tbe administrator to recover was barred by sec. 4222, Stats. 1898.

(2) Tbe limitation of sec. 4222, Stats. 1898, was not extended under sec. 4234 by tbe death of decedent, since the death did not occur during tbe last of tbe six years after tbe right of action accrued.

(3) As to the withdrawal and conversion after tbe death of decedent (there being no person in existence competent to bring an action on account thereof until plaintiff was appointed administrator nearly eight years after decedent’s death), tbe cause of action was not barred, tbe situation being governed by sec. 4251 (providing that there being no person in existence who is authorized to bring an action thereon at tbe time a cause of action accrues shall not extend tbe time within which, according to the provisions of ch. 177, Stats. 1898, an action can be commenced upon such cause of action to more than double the period otherwise prescribed by law).

Appeal from an order of tbe circuit court for Nock county: B. E. DuNwiddie, Circuit Judge.

*Affirmed.*

Action to recover money alleged to bave been converted by defendant to bis own use.

Tbe complaint was to this effect: Tbe plaintiff is tbe administrator of tbe estate of Mary O’Nourke and brings tbis action as sucb. October 1, 1897, sbe died intestate in said ■county of Nock, where plaintiff, December 16, 1904, was duly appointed administrator as aforesaid. October 9, 1894, there was awarded to her $1,923.30 by tbe county court of said county as her share of tbe estate of her son, of which defend*509ant was administrator, and on or about said day sbe received' $1,500 thereof and intrusted tbe same to the defendant to deposit for her in the Merchants’ & Mechanics’ Savings Bank of Janesville, Bock county, Wisconsin. He caused the sáme-te be deposited in said bank in the name of Mary O’Bourke, or *Henry J. O’Rourke.*The fund drew interest from the-time it was so deposited, which interest was added to the principal till the whole amount was $1,634. March 27, 1897, defendant withdrew from the bank $99.87 thereof without authority by falsely representing to the contrary, and October 7,1897, six days after the decease of Mary O’Bourke, he likewise withdrew $1,534.13, the balance of said fund. By reason of the premises, at the time of the first withdrawal he wrongfully converted to his own use $99.87, and at the time-of the second withdrawal he likewise converted $1,534.13, all of which was duly demanded of him by the plaintiff before-the commencement of this action and was by him refused.

The defendant demurred to the complaint for insufficiency and because the action was not commenced within the time-limited by law, particularly within the time limited by secs.. 4222, 4234, Stats. 1898. The demurrer was overruled.

*J. J. Cunningham,*for the appellant.

*John*Cunningham, for the respondent.

Marshall, J.

According to the facts alleged in respondent’s complaint there is no room for reasonable controversy but that the right to the property in question vested in respondent as administrator of the estate of Mary O’Eourke immediately upon his becoming such administrator. Upon the death of any person possessed of personal estate the legal title-thereto and the right to possession thereof vests in his personal representative and can only reach the heirs, ultimately entitled thereto, by due course of administration. Therefore in the absence of some sufficient equity in favor of an heir who may have possessed himself of such personalty, the mere-*510fact of his having an equitable interest therein as such not being one, the administrator duly appointed to take charge of and administer the estate of which such personalty forms the whole or a part, has an absolute right to recover the value thereof from such heir in case of his having converted the same to his own use. That is so elementary that it need but to be stated, and is a sufficient answer to the argument of counsel for appellant that the complaint fails to state a cause of action because it shows that appellant is entitled as heir to receive one half the residue of the estate of Mary O’Rourke left after the payment of all claims allowed against the estate and the expenses of administration.

The main contention of counsel for appellant is that respondent’s claim is barred by secs. 4222, 4234, Stats. 1898. As a basis for applying such sections to the pleading it is claimed that the complaint shows that appellant converted the property in question to his own use when he made the' deposit in the bank October 9, 1894. The allegations on that subject are to the effect that appellant was instructed by Mary O’Rourke to deposit the money in the bank for her and that he deposited the same there in the name of “Mary O’Rourke, or *Henry J. O’Bourlce ”*and that he was permitted by the bank to withdraw the deposit in two amounts by falsely representing to the officers of the bank that he was authorized to do so. The reasonable inference from such allegations is that the money was either deposited in the name of Mary O’Rourke or in the name of *Henry J. O’Rourke*as the money of the former. Unless the deposit was so made no pretense to the officers of the bank of authority from Mary O’Rourke to so draw the money would have been required. So construing the complaint in the light of such reasonable inference, as we are bound to do *(Emerson v.*Nash, 124 Wis. 369, 102 N. W. 921), it does not show any wrongful conversion by appellant at the time the deposit was made, and it is perfectly clear, we may safely say, that the pleader did not intend to charge a conversion as having occurred at that time.

*511It is distinctly alleged in the complaint that $99.87 of Mary O’Bourke’s money was by the defendant wrongfully obtained from the bank within one year before her death and converted to his own use, and that the balance of the deposit was so obtained and converted six days after her death, both conversions occurring more than seven years and less than eight years before the administrator was appointed. As to the first of such wrongful acts the right to recover is clearly barred by sec. 4222 of the statutes pleaded. That section limits the time for the commencement of an action to recover damages for the wrongful detention of personal property to six years after the right of action has accrued. The death of the person to whom the right of action accrues does not extend such time unless such death occurs during the last of the six years. In such circumstances sec. 4234, Stats. 1898, provides that “if a person entitled to bring an action die before the expiration of the time limited for the commencement thereof and the cause of action survive an action.may be commenced by his representatives after the expiration of that time and within one year from his death.” *Curran v. Witter,*68 Wis. 16, 31 N. W. 705, limited such section to cases where the death of a person occurs during the last year of his right to commence the action. So it will be seen it does not apply here.

As to the act of conversion alleged to have occurred after the death of Mary O’Bourke the sections of the statute relied on by appellant do not apply. There was no person in existence competent to bring an action on account of such conversion till the administrator was appointed in 1904. That situation is governed by sec. 4251, Stats. 1898, providing that “there being no person in existence who is authorized to bring an action thereon at the time a cause of action accrues shall not extend the time within which, according to the provisions of this chapter, *an action can be commenced upon such cause of action to more than double the period otherwise prescribed by law.” The complaint unmistakably shows that this action *512was commenced within the double time mentioned. There-being no other question that need be considered, the demurrer-was properly overruled.

*By the Court.*— The order appealed from is affirmed.