Williams v. Troop , 17 Wis. 463 ( 1863 )

By the Court,

Cole, J.

There does not seem to be any valid objection to the practice adopted in this cáse of referring the question, whether or not the decree had been paid, to a jury That was essentially a question of fact, to be considered and passed upon in this manner. This practice has been sanctioned in the case of Cooley vs. Gregory, 16 Wis., 303; and tbe counsel for the appellant failed to show that it was wrong. in principle or could result in any injury to his client.

It was conceded upon-the argument, that the administrator could make no contract for interest upon the decree exceeding the legal rate, which would be binding upon the estate ; that whatever might be the effect of such a contract upon the administrator personally, it could not affect the trust property. But notwithstanding this admission, that such a contract could not bind the estate, yet it is claimed, inasmuch as the administrator agreed to pay twelve per cent, interest and made various payments which were applied in payment of the increased rate, that the contract is executed and effect must be given to it. But there are difficulties in this view of the matter which cannot be overlooked. In the first place, it will be borne in mind that the agreement to pay twelve per cent, interest was contained in the stipulation made before the decree was entered. Waiving the question, whether the stipulation was not merged in the decree subsequently entered, it appears from the receipts of the two first payments, that those payments were applied on the decree; for such application is expressly stated thus to be made in those instruments. Now we can hardly presume that the parties applied any portion of those payments upon the agreements contained in the stipulation, when they say they were to be applied upon' the decree. The administrator testifies that he consented to no such application of the payments; and although there was testimony given and offered which contradicted him upon this point, yet upon the whole evidence we are well satisfied that the parties blade no application of the payments upon the said contract. Nor can we apply these payments to discharge any personal liability which the administrator may have incurred upon the stipulation. If he has incurred any such liability, the remedy is against him upon his contract. Obviously the property of the estate cannot be held liable for it in any manner. The simple question presented here is, has the decree been satisfied ? If it has, it should be discharged of record.

It appears that the administrator made a payment on the decree of one hundred and twenty dollars, which was paid in brandy. He had taken out no license under the statute to sell or traffic in ardent spirits, as it is contended it was necessary for him to do in order to make a valid sale. It is claimed that an administrator could not dispose of spirituous liquors, even to pay a debt or for any other purpose, without first obtaining the license required by law, and that if he did so, the transaction would be illegal', and no court would give any effect to it. Therefore, it is said, the value of the brandy should not be deducted out of the amount due on the decree. We do not think it would be a fair or proper construction of the excise law, to say that it required an administrator to obtain a license before he could sell or dispose of liquors belonging to his intestate. He is a person whose plain legal duty it is to sell property, collect and pay the debts and settle up the estate committed to his charge. In performing this duty and disposing of the spirituous liquors belonging to the estate, it is no more necessary for him to obtain a license, than it would be for a sheriff to obtain one before he could sell liquors taken upon an execution. It is further objected, that it nowhere appears that the brandy was trust property. But the bill of sale runs to “ O. V. Troop, administrator of the estate of A. Garrison,” and the presumption undoubtedly is, that it belonged to the estate. In selling their own property, men rarely describe it as the property of another, particularly in a case where they would likely be called upon to account for the proceeds.

Upon the whole record we are satisfied that substantial justice has been done in the cause, and that the order of the circuit court discharging the decree is correct.

The order is therefore affirmed.