#### Oakes vs. The Estate of Buckley.

*May 17*

*June 23, 1880.*

Estates of Decedents. *(1-5) Appointment of administrator*de bonis non: *conditions and proof. (6) Presumption as to presentment of claim against estate.*

Vendok and Purciiasbr of land. *(7) Rights of purchaser where vendor has no title. (8) Vendor’s offset to suit for purchase money.*

1. An order in probate allowed the final account of an administrator, declared that it appeared that the expenses of administration, debts and funeral expenses and all other accounts, had been paid, and that the residue of the estate amounted to a specified sum, and directed that the administrator pay over said residue to the heirs of the deceased orto his legal representatives, and be thereupon discharged from the trust. There was no order determining who were the heirs or distributees, and no proof filed of any payment made by the administrator under the order. *Reid,*that this record does not show a final settlement and distribution of the estate, or a want of power in the court to appoint subj sequently an administrator *de bonis non.*

2. Where the probate record does not disclose the reason for the appointment of an administrator *de bonis non,*it must be *presumed*that there was sufficient ground therefor.

3. Under sec. 13, ch. 99, R. S. 185S, the marriage of an administratrix was •sufficient ground for appointing an administrator *de bonis non.*

4. Where the record states that such appointment was made by consent of all parties interested, one who subsequently claims to have been the sole person interested in the estate must be *presumed*(in the absence of proof to the contrary) to have been present and consenting.

5. The order of the probate court granting letters of administration *de bonis non,*and the letters themselves, are *prima facie*evidence of authority to make the appointment.

6. In the absence of proof of tlie time when a claim was presented against an estate, and of any objection in the probate court that it was not presented within the time limited, this court must presume that it was presented in due time.

7. One in quiet possession under a land contract cannot, before his deed becomes due, recover paid installments of the price on the ground of his vendor’s lack of title; and though, when he becomes entitled to a deed on payment of the balance of the price, he may probably, on tendering such payment and demanding a deed, and on his vendor’s failure to make *593him a good deed, surrender the possession and recover the money paid, he is not bound to take that course, but may rely upon his vendor’s covenants, and hold possession until evicted.

8. The vendor of land without title, in an action to recover of him the purchase money, cannot offset the value of timber cut on the land by the vendee (prior to his eviction) in excess of the amount recovered against him, by the real owner, for rents, profits and damages.

APPEAL from the Circuit Court for *Iowa*County.

The case is thus stated by JVXr. Justice TayloR:

“ It appears from the record in this case that John Buckley, deceased, was in his lifetime the administrator of the estate of one Peter Allen, deceased; that a part of the estate of Peter Allen consisted of a parcel of real estate; that Peter Allen, at the time of his decease, left a widow and one child, a minor son; that John Buckley, supposing he had the right to sell the real estate of Peter Allen, entered into a written contract with the plaintiff, bearing date January 26, 1867, by which contract he agreed to sell and convey by warranty deed to said plaintiff a part of the real estate of Peter Allen, for the sum of $800, which the plaintiff agreed to pay therefor, and $400 of which was paid at the time the contract was executed. The other $400 was to.be paid in four years from the date of the contract, with interest annually. This contract was not made on the part of Buckley in his representative character as administrator of the estate of Allen, nor is the land described therein as belonging to the estate of Allen. The plaintiff took possession of the land under this contract, and remained in possession- until lie was ejected therefrom upon a judgment in ejectment obtained against him in an action commenced by Peter Allen, the son and only heir-at-law of Peter Allen, deceased, about the 6th of March, 1873; and he was finally ejected from said premises on the first of April, 1875.

“ On the trial of the present action, it was admitted that John Buckley never had any title to the land in question. *594The evidence also shows that after Buckley had made the contract with *Oalces,*as above stated, he executed and delivered to the plaintiff, whilst he was in possession of the land, a deed purporting to he made by him as the administrator of the estate of Peter Allen, but which deed was void for want of a sufficient description of the lands intended to be conveyed thereby; and no evidence was given on the part of the defendant in this action, that he had been authorized by the proper county court to sell or convey the real estate of Peter Allen, deceased. John Buckley died January 28, 1868, and Mary Buckley, his widow, was appointed administratrix of his estate November 1, 1868. The evidence tends strongly to show that no order was ever made by the county court, in the matter of the estate of John Buckley, to fix any time within which creditors of said estate were required to present their ■ claims against said estate, nor were any commissioners- appointed to pass upon and allow claims against said estate, until after the appointment of the administrator *cíe bonis non,*as hereinafter stated. The records of the proper county court show the appointment of Mary Buckley, administratrix of said estate; that notice was given appointing the 3d of January, 1870, for the hearing of said administratrix’s application to have her accounts settled; and that on the 17th day of January, 1870, the account of the administratrix was presented and allowed, and the following order made by the court: *ilowa Gounly Ooiort, in Probate*— In *the matter of the estate of John*Bueldey, *deceased.*Pursuant to an order of this court made in this'matter on the 6th day of December, 1869, comes Mary Buckley, administratrix of said estate, and presents her final account of her administration for examination and allowance; and the affidavit of II. II. Bennett, showing that the notice required to be given by said order has been duly published as ordered, being filed, and said accounts being in proper form and accompanied with the necessary vouchers, and no adverse appearance or objection being made, *595it is ordered that said account be and the same 'hereby is allowed, as follows, to wit: [Then follows an account showing the sum of $328.02 in the hands of said administratrix belonging to said estate, and it is followed by the further .order:] It appearing to the court here that the expenses of administration, debts and funeral expenses, and all other accounts, have been paid, and that the residue of said estate amounts to $328.02, it is ordered that the administratrix pay over said residue to the heirs of said deceased, or to his legal representatives', and that on her complying with said order she be discharged from further trust in said matter. RobeRt WilsoN, County Judge.’

“This ends the proceedings in the county court relative to tie estate of John Buckley, deceased, so far as the administration of Mary Buckley is concerned. The next proceeding in regard to said estate is an order dated May 10, 1875, ordering notice to be given of the petition of *Thomas H. Oakes*for administration *de. bonis non*of said estate of John Buckley. The record then shows that on the 12th day of July, 1875, letters of administration *de bonis non*on*the estate .of said Buckley were issued by the said "county court to Orville Strong; that on July 12,1875, an order was made limiting the time to six months from that date, within which all claims and demands against said estate should be presented for examination and allowance, .and that they should be presented to the judge of the court for such examination and allowance. The next order in the record is one bearing date June 12, 1876, which recites that the claim of *Thomas H. Oakes*against the estate of said Buckley had been ;theretofore filed in the court, and orders that such claim be heard and adjusted before the judge of the court on the 3d day of July, 1876. On the 3d day of July the parties appeared before the judge, and, on motion of the administrator *de bonis non,*the hearing was postponed until 'July 11, 1876. On. the last named day the claimant appeared in person and by attorneys, and the ad*596ministrator *de bonis*appeared in person, and *Mary Boyle,*formerly Mary Buckley and widow of John Buckley, deceased, also appeared in person and by her attorneys, and tbe bearing upon tbe claim was had, and tbe court allowed tbe claim of *Ocolces*at tbe sum of §064.68.

“After the allowance of said claim by the county court as above stated, and on tbe 22d day of August, 1876, tbe administrator *de bonis non,*and *Mary Boyle,*claiming to be tbe heir-at-law of said Buckley, deceased, gave due notice of an appeal from the order allowing said claim to tbe circuit court of said county, and alleged as tlieir reason for appealing from such order that, at the time said claim was filed in the county court, tbe estate of said Buckley bad been settled, and the final account of tbe administratrix bad been examined and allowed by said court, and said court bad found that all the demands against said estate bad been paid, and that said court bad discharged tbe administratrix more than six years before said claim was filed against said estate, and that tbe statute of limitations bad fully run against said claim, and that the same should not, therefore, have been allowed by said county court.

*“*After tbe return to tbe appeal bad been duly made, and tbe case bad properly come before the circuit court, tbe defendants, tbe administrator *de bonis*and *Mary Boyle,*moved tbe court for leave to file an amended answer in tbe case, which was granted; and thereupon tbe defendant *Mary Boyle*filed an amended answer setting out, *first,*that slie was formerly tbe widow of Buckley, deceased, and sole heir-at-law of said Buckley; *second,*that tbe estate of said deceased bad been fully settled by tbe proper court, and that a final order for tbe distribution of the estate bad been made by said court more than five years before tbe plaintiff had made any claim against said estate, and that no claim had been made for more than seven years after tbe death of said deceased, and tbe answer insists that tbe claim is barred by tbe statute of limitations, but does not state by wliat particular statute; *third,*that *597Bucldey was ignorant of bis rights as administrator of the estate of said Allen, and, said estate being indebted to him in about the sum of §400, he supposed he had the right to sell the real estate to pay his claim, but that afterwards, learning his error in this respect, he applied to the county court for a license to sell the lands belonging to said estate, and that said Bucldey, as administrator, sold the lands by virtue of said license, to said plaintiff, for the sum of §800, and that §400 of the purchase money was considered paid by the former payment made by *Oakes*on the contract for the purchase made with Buckley, and-a mortgage was taken for the balance of the purchase money from *Oakes*to Buckley.

“The other matters in the answer are not material to the questions arising upon this appeal. The case was tried in the circuit court, and the judgment of the county court was affirmed.”

From the judgment of the circuit court this appeal was taken in the name of “ *The Estate of John Bucldey, deceased.”*

For the appellant there was a brief by *Wilson dé Mcllhon*and *Lanyon dé Spensley,*and oral argument by *Mr. Bpensley*and *Mr. Wilson.*

For the respondent there was a brief by *lieese dé*Carter, and oral argument by *William E. Garter.*

Tatloe, J.

The appellant alleges as error that the appointment of the administrator *de bonis non*was wholly void for want of jurisdiction in the county court to make the appointment, for the reasons that the record shows the estate of Buckley had been fully settled, the estate distributed, and the administratrix of the estate discharged of her trust, several years before the application for the appointment of the administrator *de bonis non*was made, and that no cause is shown for such appointment, admitting that the administration of the estate had not been fully closed. The first objection is *598not sustained by the proofs. The order introduced in evidence which, it is claimed, shows the fact, only shows that the debts, funeral expenses and expenses of administration had been fully paid, and that there remained in the hands of the administratrix the sum of $328.02 belonging to the estate of the deceased, and a direction that the sum be paid to the heirs of said deceased, and that, upon making such payment, the admin-istratrix be discharged from further trust in said matter. The order does not define who the heirs of the deceased are, or make any distribution of the estate to them, but confers the duty of making the distribution upon the administratrix, and discharges her from any further duty a§ such when she shall have made such distribution. Under this order she should have filed in the county court some proof that she had paid the moneys in her hands to the proper person, in order to have made a final distribution of the estate. For anything appearing in the evidence, the former administratrix of Buckley’s estate has this money still in her hands. This is, in fact, admitted, as she claims to be the sole heir-at-law of the deceased, and as such claims the money. But she fails to show any adjudication of the county court that she is such sole heir, or any award to her of the estate of said deceased as such heir. It does not appear, therefore, that the estate of Buckley had been finally settled and distributed when the application was made for the appointment of an administrator *de 'bonis non.*

The other objection is, that, if the estate had not been fully settled and distributed to the hqirs, then it appears there was an administratrix of such estate at the time of the application, and there is no proof that such administratrix had been removed, that she had resigned, or had in any other way become disqualified to hold the office. We think it is a sufficient answer to this objection that, as the record does not disclose the reason for the appointment, it must be presumed that the appointment was for some good cause in the law. The evidence *599shows that the former administratrix had remarried, and this fact would furnish sufficient ground for appointing an administrator *de bonis.*See section 13, ch. 99, R. S. 1858; Tay. Stats., 1213, § 13. The record also discloses that the appointment, was made by the mutual consent of all parties interested, and Mary Buckley, widow of the deceased, and administratrix, claims that she is the only party interested except the claimant; and it must be presumed, therefore, that she was present consenting to such appointment. But, in the absence of any evidence showing the appointment void, the order granting the letters, and the letters themselves, are *prima facie*evidence of the authority to make the appointment. See *Bailey v. Scott,*13 Wis., 619; *Sitzman v. Pacquette,*id., 291; *Chase v. Ross,*36 Wis., 267; *Wittman, Executrix, v. Watry,*45 Wis., *491; Flood, Adm’r, v. Pilgrim, 32*Wis., 376.

The appellant further alleges that the evidence shows that 'the plaintiff’s claim was barred by the statute of limitations; and upon this point he invokes the six-year limitation and the shorter limitation for presenting claims against the estates of deceased persons. We think neither objection is good. The plaintiff’s claim arises out of the breach of Buckley’s contract to convey the lands described in his contract to the plaintiff as therein provided. Buckley had not agreed to convey until the money was due and payable, audit did not become so due until 1871. At that time Buckley had been dead for several years, and, as is claimed by the defendants, his estate had been settled and the administratrix discharged. The plaintiff having been put into possession under his contract of purchase, and holding the undisturbed possession, he could . not have maintained any action against Buckley upon the contract until the time arrived when he was to pay the balance of the money and have his deed. See *Diggle v. Boulden,*48 Wis., 477. At that time it is probable that by making a tender of the money due he could have rescinded the contract,surrendered the possession, and recovered the money he *600bad paid thereon, of Buckley or his personal representatives, had they failed to give him a good title to the lands; and in this view of the case six years would not have expired from the time his right of action might have accrued to the time of his presentation of his claim to the county court for allowance. But as the plaintiff was in possession of the land under his contract, and remained in the quiet possession, no cause of action would accrue to him as against Bxickley or his representatives to recover back the purchase money paid for the land, until he was evicted therefrom by some one having a title paramount to .Buckley’s title; and the evidence shows that he was not finally evicted until April 1, 1875. At this last date the right of action in favor of the plaintiff became perfect as against the estate of Buckley, and not before. Though the plaintiff might have had his right of action when he became entitled to a deed under his contract, by making á tender of the balance of the purchase money and surrendering the possession to his vendor, he was not bound to surrender such possession, but might rely upon the contract of his vendor to make his title good, and hold the possession until he was evicted by the real owner. *Noonan v.*Ilsley, 22 Wis., 27; *Mecklem v. Blake,*id., 495; *Ludlow v.*Gilman, 18 Wis., 552; *Horton v.*Arnold, 18 Wis., 212; *Taft v.*Kessel, 16 Wis., 273-8; *Diggle v.*Boulden, *supra; McIndoe v.*Morman, 26 Wis., 588. The plaintiff’s cause of action did not in fact accrue until April 1, 1875. The record shows that no order had been made by the county court limiting the time within which all claims and demands against the deceased should be presented for examination and allowance, until the 12th of July, 1875; and that order limited the time for presenting claims against said estate to six months after that date. The record does not show when the claim was in fact presented for allowance; but there is an order, bearing date June 12, 1876, which recites the fact that the claim had been *theretofore*filed, and as no objection was made either in the county or circuit court that it *601bad not been filed witbin tlie six months fixed by said order, we must presume it was filed within that time.

The only other objection urged against the. judgment is, that the court erred in refusing to permit the defendants to show that the plaintiff, whilst in possession of the lands under his contract, had cut and removed therefrom large quantities of timber, and that the value .of the timber so removed was a much greater sum than had been recovered against him by the real owner in the action of ejectment for rents, profits and damages. We do not think this was error. The evidence having disclosed the fact that Buckley was not the owner of the lands, he liad no right to the timber growing thereon, and, if the real owner failed to recover the value of the timber taken therefrom by the plaintiff,' or if he, without consideration, released his claim against the plaintiff for damages sustained by reason of the cutting and removal of such timber, we are unable to comprehend how that would give Buckley or his representatives the right to recover the value of such timber of the plaintiff.

We find no error in the record and proceedings, and the judgment must be affirmed.

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