#### Brown, Appellant, vs. McGee’s Estate, Respondent.

*February 24*

April *17, 1903.*

*Executors and administrators: Revocation of appointment by reversal of order 'admitting will to probate: Claim for expenses, etc., how allowed.*

1. On appeal to the circuit court an order of the county court admitting a will to prohate was reversed on the ground that the county court had no jurisdiction because the testator was a resident of another county at the time of his death. *Held*that, while such reversal operated to revoke the appointment, *by*said county court, of an administrator with the will annexed, yet it does not follow that the person so appointed is not entitled to be reimbursed for moneys theretofore expended and services theretofore rendered by him in good faith in pursuance of such appointment.

2. The claim for such reimbursement, however, cannot be allowed as a claim against the decedent under sec. 3838, Stats. 1898, but must he presented in an administrator’s account and allowed, if at all, as a part of the expenses of administration.

Appeal from a judgment of the circuit court for Columbia county: E. G. Siebeckeb, Circuit Judge.

*Affirmed.*

It appears and is undisputed that the testator, Edward McGee, formerly lived in Eond du Lac county, and then moved to and became a resident of Waushara county, where he died testate. Thereupon his widow presented a petition in due form to the county court of Eond du Lae county, praying that an instrument in writing, purporting to be the last will and testament of Edward McGee, deceased, be admitted to probate. After due notice such instrument was admitted to probate by the county court of Eond du Lac county, without objection, and at the request of the widow, the plaintiff, *0. Frank Brown,*was appointed administrator of the estate with the will annexed, by that court. *Brown*qualified as such administrator, and letters of administration were issued to him by that court. Thereupon the heirs at law of said do-*390ceased commenced proceedings in that court to revoke such letters and the order appointing *Brown*as such administrator, and finally the heirs at law appealed to the circuit court for Eond du Lac county from the order, judgment, and decree of the county court of Eond du Lac county admitting the will to probate. Upon the hearing of such appeal, the circuit court for Eond du Lac county found, among other things, that the testator, Edward McGee, had changed his residence from Eond du Lac county to Waushara county, and was a resident of Waushara county at the time of his death, and reversed the decree of the county court admitting the will to probate. '

Afterwards certain proceedings were had in the county court of Waushara county wherein and whereby the will was admitted to probate in that county Eebruary 20, 1900, and one Thomas Eearne was duly appointed administrator with the will annexed, and he thereupon qualified as such, and letters of administration were duly issued to him and he gave notice to creditors as required by law. The claim of the plaintiff was filed in the county court of Waushara county within the time required by law for filing claims against the estate of the deceased. Such claim was for $153.34, and was for expenses incurred by the plaintiff while acting as such administrator with the will annexed under such appointment by the county court of Eond du Lae county. The county court of Waushara county disallowed the claim, and the plaintiff appealed to the circuit court for Waushara county. In the latter court, when the cause was reached, objection was made to the reception of any evidence under the claim and, to enable the court to make proper ruling thereon, facts were stipulated,, in addition to those above stated, to the effect that the widow and administrator (plaintiff) acted in good faith in attempting to have the will probated in Eond du Lac county; that the county court of Eond du Lac county had no jurisdiction to probate the will; and that the claim is a rea*391sonable one for tbe services rendered by the plaintiff while acting as administrator, if properly presented to the county court of Waushara county.

Upon the foregoing stipulated facts, found by the court, and after hearing counsel for the respective parties, and the court being of the opinion that the county court of Waushara county “had no jurisdiction to allow said claim in the form presented,” and having sustained the objection to the reception of any evidence under the complaint, it was thereupon ordered by the circuit court of Waushara county that the appeal of the plaintiff from the order and judgment of the county court of Waushara county dismissing said claim of the plaintiff against the estate of Edward McGee, deceased, be dismissed, and that the estate of Edward McGee have judgment against the plaintiff for its costs and disbursements in this action; and judgment was thereupon ordered accordingly. Erom the judgment so entered the plaintiff appeals.

Eor the appellant there was a brief by *Duffy & McOrory,*and oral argument by *J. II. McCrory.*

Eor the respondent there was a brief by *Edward P. Kileen,*attorney, and *Lamoreux & Parle,*of counsel, and oral argument by *Mr. Kileen*and *Mr. P. J. Carpenter.*

To the point that the claim was in no event, in whatever form presented, a proper charge against the estate, they cited 1 Woerner, Administration (2d ed.) 417; *Bradley v. Comm.*31 Pa. St. 522; *Magiar v.*McCombs, 66 N. 0. 345; 7 Am. & Eng. Ency. of Law, 441.

Cassoday, C. J.

In support of the judgment it is claimed that the county court of Eond du Lac coimty had no jurisdiction to appoint the plaintiff administrator of the estate of Edward McGee, deceased, with the will annexed, and hence that the moneys expended and services rendered by him in such false and void administration constituted no just claim against the estate. The statute gives the county courts juris*392diction in “the probate of wills and granting of letters testar mentary and of administration on the estates of all persons deceased who were [are] at the time of their decease inhabitants of or residents in the same county,” and in certain other cases not necessary to mention. Sec. 2443, Stats. 1898. “If the case be originally within the jurisdiction, of the county courts of two or more counties, the court” first taking jurisdiction retains it throughout. Sec. 2444, Stats. 1898. The statute then provides:

> “The jurisdiction assumed by any county court in any case, •so far as it depends on the place of residence of any person or the location of his estate, shall not be contested in any action or proceeding whatever except on an appeal from the county court in the original case or when the want of jurisdiction appears on the same record.” Sec. 2445, Stats. 1898. *Will of*Slinger, 72 Wis. 22, 25, 37 N. W. 236.

An appeal was taken from the order, judgment, and decree of the county court of that county to the circuit court of Fond du Lac county, where it was determined “that the county court of Fond du Lac county had no jurisdiction to probate the will of said deceased;” and that was based upon the finding “that the *preponderance*of the evidence showed that Edward McGee had changed his residence from Fond du Lac county to 'Waushara county, and was a resident of Waushara county at the time of his death.” Thus it appears that the circuit court on appeal determined that the testator was a resident of "Waushara county, only after a controversy and upon the preponderance of the evidence. There is nothing in the record to indicate any “want of jurisdiction” in the county court of Fond du Lac county, much less that there was any “want of jurisdiction” apparent on the record of that court, as mentioned in the section of the statute quoted. While the determination of the circuit court for Fond.du Lac county that the county court of that county had no jurisdiction to admit the will to probate operated to revoke the appointment of the plaintiff as administrator, yet it does not follow that the *393plaintiff is not entitled to be reimbursed for tbe moneys be bad in good faitb expended and tbe services be bad in good faitb rendered, in pursuance of bis appointment. *T. T. Haydock C. Co. v. Pier,*74 Wis. 582, 43 N. W. 502; *S. XC.*82 Wis. 316, 52 N. W. 314; *Northwestern I. Co. v. Land & R. I. Co.*92 Wis. 487, 66 N. W. 515; 11 Am. & Eng. Ency. of Law (2d ed.) 1279. See, also, tbe statutes as to tbe effect of tbe revocation of letters testamentary or of administration. Secs. 3815, 3817, Stats. 1898. After tbe will was admitted to probate in Wausbara county, letters of administration with tbe will annexed were issued to Thomas Eeame, who qualified as such administrator, and thereupon notice was given to creditors to present their claims against tbe estate, as required by tbe statute. Sec. 3840, Stats. 1898. That made it tbe duty of tbe county “court to receive, examine and adjust the claims and demands of all persons against tbe deceased.” Sec. 3838, Stats. 1898. In construing that section, this court has held that tbe claims thus referred to are limited to “such as existed at tbe time of tbe death of tbe decedent or result from contracts made by him, and do not include claims or liabilities incurred by tbe personal representative in executing tbe trust.” *McLaughlin v. Winner,*63 Wis. 120, 23 N. W. 402; *Reinig v. Hartman,*69 Wis, 28, 32 N. W. 639. Notwithstanding that statute, as so construed, tbe plaintiff presented bis claim as one existing against tbe deceased. Neither tbe county court nor tbe circuit court for Wausbara county refused to allow tbe claim on tbe ground that it was without merit or ought not to be paid, but seemingly upon the ground that tbe county court was not called upon to act upon it when presented in that way and upon such notice. If tbe plaintiffs claim, or any part of it, is to be allowed, it must be as a part of tbe expenses of administration. Tbe statutes provide for tbe allowance to the administrator of compensation, commissions, and necessary expenses, including costs paid by him. Secs. 3929, 3930. But tbe statute also pro*394vides that the administrator shall render his account as therein required, and “from time to time^ as may be required by the county court, until the estate shall be wholly settled and then provides that, before such account “shall be allowed, notice shall be given to all persons interested of the time and place of examining and allowing the same,” as therein prescribed. Secs. 3927, 3931. It also provides for the settlement of the unsettled accounts of deceased administrators upon like notice. Sec. 3934. No such notice was given in the case at bar, and so the plaintiff’s claim was never properly presented to the county court, and consequently never determined nor considered by that court nor by the circuit court. In *Miller v.*Tracy, 86 Wis. 330, 56 N. W. 866, this court had occasion to consider the personal liability of an administrator for beneficial services rendered by an attorney who had never in fact been employed. Such being the record, the plaintiff is not to be regarded as barred from a proper presentation of his claim by anything herein decided.

*By the Court.*— The judgment of the circuit court is affirmed.