Will of Hurley , 193 Wis. 20 ( 1927 )

Stevens, J.

(1) The case presents the very unusual situation where an executor retained possession of real estate belonging to the testatrix without attempting to make a final settlement of the estate for more than twelve years. Sec. 313.14 of the Statutes declares the public policy of the state that the time within which an estate should be settled shall be limited. But after the expiration of the time fixed by statute, it is still the duty of the executor to care for the property of the deceased and to conserve the estate until it is finally settled. Lindemann v. Rusk, 125 Wis. 210, 225, 104 N. W. 119. Nevertheless it is the duty of the executor to close the affairs of the estate as soon as that can be done without jeopardizing the interests of the estate. Upon his shoulders rests the burden of justifying any unusual or undue delay in the administration of the estate.

(2) This estate could not be closed until the real estate was sold. The executor, residing in Dakota, was selected by the deceased from among her sons to administer her estate. From the beginning of his administration he made every effort to sell the land. He did what every prudent owner of land customarily does: he advertised the land for sale and placed it in the hands of a real-estate agent in the locality where the land was located. In the meantime he managed the property so that it yielded a profit of approximately $1,500 above the taxes on the land and interest upon incumbrances placed thereon by the testatrix.

An examination of the account shows that the executor made many trips from his home in Dakota to look after the land and that he claimed a nominal compensation of only $100 for his services. There is nothing in the record which warrants a finding that the executor was not trying to do his full duty. Under these circumstances it must be held that the executor has met the burden of satisfactorily explaining what would under ordinary circumstances be held to be an unwarranted delay in closing the administration of the estate.

The executor was properly charged with the full amount of rentals received and properly credited with the taxes paid upon the real estate in his possession. It was clearly his duty to protect the interests of the estate by the.payment of such taxes so long as the real estate was in his possession. Long v. Landman, 118 Mich. 174, 181, 76 N. W. 374, 377. The interest paid upon the mortgages upon the real estate stands upon the same basis. No one questioned that these mortgages were valid liens upon the land. It was the duty of the executor to protect the interests of the estate in the lands in his possession. Had he neglected to take care of the interest on these mortgages, thereby causing loss to the estate, he would undoubtedly be liable to the estate for his failure to pay this interest. Russell v. Wheeler, 129 Mich. 41, 46, 88 N. W. 73, 74. “The governing principle is that — subject to the contingency of the expense being disallowed by the court — he may do whatever is necessary for the preservation of the property of the estate, and the specific character of the act done is altogether immaterial. Hence, necessarily, his power must extend to the preservation of property by paying off liens existing on it, when necessary for the purpose.” Estate of Freud, 131 Cal. 667, 671, 63 Pac. 1080.

For the protection of the executor he should have required the notes secured by these mortgages to be filed as claims against the estate. B.ut the fact that he did not do so does not relieve him of the duty of protecting the estate. In the absence of the allowance of these notes as claims against the estate the executor acted at his peril in paying interest thereon. But the fact that these payments' of interest were made without claims being filed against the estate does not deprive the executor of the right to a credit for such interest payments when it is established that such payments were made upon valid mortgages to protect the estate. It would be manifestly unjust to charge the executor with all income received from the real estate without crediting him with all sums expended by him to protect real estate which produced that income from loss because of valid liens thereon created by the deceased in her lifetime. Jennison v. Hapgood, 10 Pick. 77, 105.

The New York cases holding that an executor is not entitled to credit for interest paid upon mortgages against real estate in his possession were decided under a statute which makes it the duty of the heir or devisee to “satisfy and discharge the mortgage out of his own property without resorting to the executor or administrator.” Fox’s Estate, 159 Mich. 420, 124 N. W. 60, 61.

The conclusion follows that the executor should have been credited with the full amount of interest paid by him, including interest at eight per cent, after 1921, because the undisputed proof is that neither the heirs nor the executor was able to secure a renewal of the mortgage loans at a lower rate of interest.

(3) All claims filed were verified except one for $32.59 and no objection was made to any claim filed. Under sec. 313.02 of the Statutes the county court might, in its discretion, allow all verified claims without further proof. The undisputed evidence is that the county judge then presiding directed the executor to pay these bills. It is unfortunate that the county judge did not affix his signature to the judgment on claims that was prepared and filed. But the absence of the signature does not prevent the court from crediting the executor with sums he paid upon just claims against the estate at the direction of the county judge.

The court should have given the executor an opportunity to secure and presént his vouchers showing payment of these claims. But in view of the-fact that no heir or other person interested in the estate filed any objection to any of these claims, and further in view of the fact of the undisputed proof that the executor has paid the amounts claimed by him upon these claims, we see nothing to be gained by putting the estate to the expense of a further hearing, and therefore direct the county court to credit the executor in his final accounting with the amounts reported as paid upon claims against the estate.

By the Court. — Order reversed, and cause remanded for further proceedings in accordance with this opinion. The costs of the executor to be paid out of the estate.