Hitchcock v. Merrick , 15 Wis. 522 ( 1862 )

By the Court,

Dixok, O. J.

It is not pretended the defendant was surprised by the amendment. It is very obvious'he could not have been. Fisk vs. Tank, 12 Wis., 277; Gillett vs. Robbins, id., 319; Bonner vs. Insurance Co. 13 Wis., 677.

It seems clear to us that the plaintiff showed a good title to the bond and mortgage, as against the defendant. The provision of the New York statute is intended for the benefit of the creditors merely, and no other can take advantage of it. Executors have an absolute power of disposal of the personal effects of their testator. They may even dispose of a chattel specifically bequeathed, and the title of the alienee cannot be disputed, Williams on Exr’s, 796; Williams vs. Ely, 14 Wis., 236. It is probable that the creditors may, under the s-tatute’ •i'0^0w th® property or its proceeds into the bands of the and compel bim to account, but until that is done, cannot be otherwise questioned, and bis release or discharge of the debt will be good. The executors may charge themselves upon their bond, which is in general a sufficient means of protection to. creditors. The statute prescribes the duty of executors in this respect, and does not take away their general power to dispose of the personal estate which belonged to the testator. They may make such disposition of it as they please, but if they apply it in payment of legacies within the year, they become personally responsible to his creditors.

The clerk clearly exceeded his powers in taxing $14.30 as fees for himself and his predecessor in office. The statute expressly limits the fees of the clerk, in cases like this, to $10. R. S., chap. 133, sec. 17. There was no authority for taxing more. The item of $3.50 paid to the former clerk for a commission to take the testimony of non-resident witnesses was likewise improper. No such fee is allowed by law. It is the business of the attorneys and clerk to prepare such papers without compensation in addition to what is specifically given them for such services. The defendant took the proper steps to rid himself of those illegal items. He moved the court for a re-taxation, and the taxation of the cffirk being affirmed, he excepted. Cord vs. Southwell, ante, p. 211. The court should have stricken out the item of $3.50, and reduced the clerk’s fees to $10.

It is competent for the parties to stipulate for a reasonable attorney’s fee in case of foreclosure. Tallman vs. Truesdell, 3 Wis., 454; Boyd vs. Sumner, 10 Wis., 41; Rice vs. Cribbs, 12 Wis., 179. It must be presumed that such stipulations are made in reference to the costs given by law, and as an additional allowance. The fee in this case is not excessive.

The cause must be remanded with directions that the judg ment be modified in accordance with this opinion. Judgment in this court for costs in favor of the appellant.