#### Stehn, Administrator, Respondent, vs. Hayssen and others, Appellants.

*March 18*

April *5, 1905.*

*Circuit and county courts: Jurisdiction: Estates of decedents: Partnership: Accounting: Wills: Construction: Title to personalty: Laches: Limitation of actions: When cause of action accrues: Failure to present claim against'decedent: Pleading: Demurrer: Presumptions.*

1. The circuit court has jurisdiction of an action hy the personal representative of one deceased partner for an accounting and settlement of the partnership affairs,'although the estate of a subsequently deceased partner is in process of settlement in the county court, where there is a surviving partner who is a necessary party and against whom judgment cannot he recovered in the county court.

2. In an action hy the personal representative of a deceased partner for a partnership accounting and settlement, there being no suggestion in the complaint that the persons interested in the estate of the deceased, some of whom were minors without guardians, had settled the partnership matter, no such settlement will he presumed, on demurrer, to have taken 'place.

3. A will giving to the testator’s widow during widowhood, and until his youngest child should arrive at the age of maturity, “all my property of whatever description . . . including my interest in the firm,” etc., did not give the widow such partnership interest as a specific bequest, to he enjoyed hy her *in specie,*hut merely mentioned such interest for greater certainty and disposed of it in the same way as the other property.

4. Neither the widow nor the other legatees (the testator’s children) ' could take title to such partnership interest except through the medium of an executor or administrator; and upon appointment of an administrator the right to recover such interest vested in hiip.

5. From the complaint in the action for an accounting it appeared that the widow and children were ignorant of their rights under the will and of their right to an accounting; that the widow did not qualify as executrix; that no administrator was appointed until about sixteen years after the will was proved, when one of the testator’s sons, within a few months after attaining majority, was appointed administrator with the will annexed and commenced the action. *Held,*on demurrer, that the complaint did not show laches.

*5846. There being no person in existence who could bring «the action for an accounting until the appointment of plaintiff as administrator, the cause of action did not accrue until such appointment, and the action was not barred, under sec. 4221, Stats. 1898, at the expiration of ten years after the dissolution of the partnership by the death of plaintiff’s testator.

7. Defendant, not having pleaded a limitation under sec. 4251, Stats. 1898, could not rely thereon, even if the time limited thereby had expired.

8. Failure to present a claim on behalf of the testator’s estate against the estate of the subsequently deceased partner did not operate as a bar, under sec. 3844, Stats. 1898, to the action for an accounting, or prevent the reaching of partnership property therein, whatever its effect might be as to a money recovery against the last-mentioned estate.

9. That the testator’s widow may, contrary to legal right, have participated in continuing the business of the partnership — no such fact being stated in the complaint — is not ground for a demurrer for defect of parties upon the theory that the widow is a necessary party.

Appeal from an order of the circuit court for Sheboygan county: Michael Kiewaw, Circuit Judge.

*Affirmed.*

The appeal is from an order overruling separate demurrers to the complaint. That document alleged that for many years prior to 1886 one John H. Stehn was associated as copartner with John M. Kohler and *Herman Hayssen*in the manufacturing business at Sheboygan; that Stehn died in November, 1886, leaving a widow and six children, of ages from twelve to two years, and leaving a will, by which he gave “unto my beloved wife, to have and to hold unto her own use, and as long as she may remain my widow and until the youngest of my children shall have arrived at the age of maturity, all of my property of whatsoever description, real, personal, or mixed, including my interest in the firm of Kohler, Hayssen & Stehn, of the city of Sheboy-gan. In case my wife shall remarry, and whenever the youngest of my children shall arrive at the age of maturity, all of my property aforesaid shall be divided equally between *585my said wife and children then living, share and share alike.” This will was proved in January, 1887, but the widow, who was named as executrix, never qualified, nor was any ■other executor or administrator appointed until May 4, 1903, when the present plaintiff, having then just attained his majority, applied for and received appointment as administrator with the will annexed. At that time five of the ■children had attained their majority, and one was still a minor; all of them, together with their mother, the widow, being still alive, and the latter not being manned. On November 5, 1900, one of the partners, John M. Kohler, died testate, and the defendants, *George Heller*and *Robert ■J.*and *Walter J.*Kohler, were appointed as executors, and due notice given for the proof of claims against that estate, the time of which expired before plaintiff’s appointment as ■administrator.

The complaint further alleges that all the property and records of the partnership business have continued in the hands of the defendants up to the present time; that at the time of Stehn’s death his interest in the partnership was of the value of $12,000, which, by reason of profits and accumulations, had increased to $28,000 at the time of Kohler’s ■death; that all debts and liabilities of the partnership had been paid and satisfied, and a large surplus of real estate .and personal property, both of original capital and increase, remains in the possession of the defendants; that at the time of Stehn’s death an extensive business was being done, and the partnership had many debts, credits, and contracts outstanding which were not consummated and realized upon for “a number of years after his death;” that *Hayssen*and Koh-ler both drew out from time to time large sums of money; that the amounts thereof, and the status of the affairs of the firm, are unknown to the plaintiff, but all within the knowledge and control of the defendants; that plaintiff, until about the time of his appointment as administrator, was not aware *586of tbe contents of bis father’s will, and that he and all the other legatees therein were ignorant of their rights under said will, and of tlioir right to an account by the surviving partners, and that no guardian was ever appointed for any of Stehn’s children; that he has demanded an accounting from the defendants of the partnership affairs, and payment of such sum as might be found due him as such administrator, but has been refused; that there is a large sum due him, but that, without accounting and discovery, he is unable to state the amount, but believes the same to be $28,000; that said accounting and discovery are necessary; wherefore he prays an accounting and discovery of the property and assets, appointment of receiver to take charge of books, papers, and assets, and that the defendants be adjudged to pay, in such proportions as may be found due, such sum as may equal the proportion of the value of the assets belonging to Stehn at his death, after payment of the debts of the partnership, together with the accrued profits derived from the-use thereof; also that he have general relief.

The surviving partner, *Hayssen,*demurred on grounds: (1) No cause of action stated; (2) that the action was barred’ by sec. 4221, Stats. 1898, (3) by sec. 4222, Stats. 1898,. (4) by sec. 4226, Stats. 1898, (5) by sec. 4227, Stats. 1898; and (6) for defect of parties defendant. The executors of' Kohler’s estate demurred: (1) For want of jurisdiction of the subject matter; (2) failure to state a cause of action; (3) bar by sec. 4221, Stats. 1898, (4) by'sec. 4222, Stats. 1898, (5) by sec. 4227, Stats. 1898, and (6) by sec. 3844,, Stats. 1898.

For the appellant *Hayssen*thpre was a brief by *Andrew Gilbertson,*and for the appellant executors a separate brief by *Francis Williams,*and the cause was argued orally by *Mr. Gilbertson.*

For the respondent there was a brief by *Bowler & Bowler**587and *Edward*Voigt, and oral argument by *E. B. Bowler*and *Mr. Voigt.*

Dodge, J.

1. This action is clearly witbin tbe proper jurisdiction of tbe circuit court, for tbe reason that the-county court, in tbe settlement of tbe Nobler estate, cannot bring before it, or render judgment against, tbe surviving partner, *Herman Hayssen,*whose presence is essential to tbe ascertainment and full adjudication of tbe rights of all parties. *Gianella v.*Bigelow, 96 Wis. 185, 71 N. W. 111 ; *Morey v. Fish Bros. W. Co.*108 Wis. 520, 84 N. W. 862; *Gager v.*Paul, 111 Wis. 638, 87 N. W. 875.

2. Tbe basis of the contention that tbe complaint does not' state facts sufficient to constitute a cause of action is not made very apparent by tbe briefs, although considerable-space is devoted thereto. It seems to rest on tbe proposition-that tbe parties interested in tbe estate of John II. Stehn might have so settled the partnership matter, and indeed bis whole estate, that an administration would be unnecessary. It is not pretended that there is any suggestion in tbe complaint that they have done so, and in view of tbe fact that some of them have at all times been minors, without guardians, tbe probability of any effective settlement would hardly seem so imminent as to warrant the presumption that -it must have taken, place.

Another suggestion under this bead is that tbe will is to be construed as giving the deceased's interest in this part-' nership as a specific bequest to his widow, to be enjoyed by her *in specie.*AAre do not think the will is open to such construction. It is to us apparent that, the phrase, “all of my property of whatsoever description, real, personal, or mixed, including my interest in the firm of Kohler, Hayssen & Stehn, of the city of Sheboygan,” did not dispose of that interest differently from any of the other property; that it was; *588■specially mentioned merely for greater certainty, by reason ■of a possible doubt in tlie testator’s mind whether such an interest was fully described by the expression “property.” Apart from these considerations, however, neither the widow nor any of the other legatees could take any title to any of the personal property except through the medium of an executor or administrator, so that, an administrator having been appointed, all rights in any of the personal property left by the deceased, including the right to recover his interest in that copartnership, are now vested in that administrator, and must be sued for by him. *Blakely v. Smock,*96 Wis. 611, 71 N. W. 1052; *Buttles v. De Baun,*116 Wis. 323, 93 N. W. 5; *McKenney v. Minahan,*119 Wis. 651, 97 N. W. 489 ; *Rowell v. Rowell,*122 Wis. 1, 99 N. W. 473.

It seems also to be suggested that the complaint fails to .state a cause of action because of laches in the plaintiff. But in view of the fact that this plaintiff commenced the suit within a few months after attaining his majority, and that it is expressly alleged in the complaint that none of the beneficiaries in the estate had any knowledge of the existence of their rights thereunder, we cannot seriously consider the suggestion that laches appears on the face of the complaint.

3. *Limitations.*Under this head four different sections of ch. 177, Stats. 1898, are pleaded. Eor what purpose, is not very apparent. The only statute which in any wise describes the action is subd. 4, sec. 4221, Stats. 1898:

> “An action which, on and before the twenty-eighth day of February in the year one thousand eight hundred and fifty-seven, was cognizable by the court of chancery, when no other limitation is prescribed in this chapter.”

An action for partnership accounting and settlement was one which, prior to 1857, was cognizable by the court of chancery. Such action, by that section, is barred within ten years after the cause of action accrues. No cause of action «can accrue until there is some person in existence who can *589bring it, and there is no person in existence to bring an. action in favor of the estate of a deceased person, which arises after death, until an executor or administrator is appointed. *Bucklin v.*Ford, 5 Barb. 393; *Dunning v. Ocean Nat. Bank,*61 N. Y. 497; *Sanford v.*Sanford, 62 N. Y. 553; *Sambs v. Stein,*53 Wis. 569, 572, 11 N. W. 53. Our limitation statutes were framed in 1878, and sec. 4251,. R. S. 1878, was added in express recognition of that rule.. Revisers’ Notes, 1878. Hence this cause of action did not accrue until the appointment of plaintiff as administrator in 1903. Another section (sec. 4251, Stats. 1898) does provide that, “There being no person in existence who is authorized to bring an action thereon at the time a causé 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;” but defendants have not pleaded this limitation in their demurrer, as they would, need to, in order to meet the requirements of sec.. 2651, Stats. 1898. But, in any event, the time limited by sec. 4251, Stats. 1898, from the time of the dissolution of this partnership by the death of Stehn, in 1886, has not yet expired, that time being twenty years.

The separate demurrer of Kohler’s- executors also raises sec. 3844, Stats. 1898, as a bar by limitation, but it cannot have any effect to prevent the partnership accounting, nor-the reaching of property belonging to the partnership, whatever its effect on any money recovery against the Kohler estate.

4. The separate demurrer of *Hayssen*also asserts, as a ground, “defect of parties.” Such demurrer, of course, cannot stand in face of the provisions of sec. 2651, Stats. 1898, which requires that a demurrer on that ground shall set forth a particular statement of the .defect. However, as we are informed by the brief, the defect complained of is the. *590■absence of Mrs. Stebu as a party, and tbe claim tbat sbe 'is a necessary party apparently because sbe bas tbe legal title to her deceased husband’s interest in this partnership as a specific bequest, and because sbe may have continued tbat interest and participated in running tbe business since bis death. Tbat sbe bas not tbe legal title, for two reasons, 'has already been shown. Tbat sbe may, contrary to legal right, have participated in running tbe business, is certainly no ground of demurrer when tbe complaint states no such fact. If, by reason of any acts of hers not disclosed by tbe complaint, sbe may be a necessary party, those facts must be 'brought to tbe notice of the court by some pleading able to ■assert them.

*By the Court.*— Order affirmed.