Stehn v. Hayssen

Dodge, J.

1. This action is clearly witbin tbe proper jurisdiction of tbe circuit court, for tbe reason that the-county court, in tbe settlement of tbe Nobler estate, cannot bring before it, or render judgment against, tbe surviving partner, Herman Hayssen, whose presence is essential to tbe ascertainment and full adjudication of tbe rights of all parties. Gianella v. Bigelow, 96 Wis. 185 , 71 N. W. 111 ; Morey v. Fish Bros. W. Co. 108 Wis. 520 , 84 N. W. 862 ; Gager v. Paul, 111 Wis. 638 , 87 N. W. 875 .

2. Tbe basis of the contention that tbe complaint does not' state facts sufficient to constitute a cause of action is not made very apparent by tbe briefs, although considerable-space is devoted thereto. It seems to rest on tbe proposition-that tbe parties interested in tbe estate of John II. Stehn might have so settled the partnership matter, and indeed bis whole estate, that an administration would be unnecessary. It is not pretended that there is any suggestion in tbe complaint that they have done so, and in view of tbe fact that some of them have at all times been minors, without guardians, tbe probability of any effective settlement would hardly seem so imminent as to warrant the presumption that -it must have taken, place.

Another suggestion under this bead is that tbe will is to be construed as giving the deceased's interest in this part-' nership as a specific bequest to his widow, to be enjoyed by her in specie. AAre do not think the will is open to such construction. It is to us apparent that, the phrase, “all of my property of whatsoever description, real, personal, or mixed, including my interest in the firm of Kohler, Hayssen & Stehn, of the city of Sheboygan,” did not dispose of that interest differently from any of the other property; that it was; *588 ■specially mentioned merely for greater certainty, by reason ■of a possible doubt in tlie testator’s mind whether such an interest was fully described by the expression “property.” Apart from these considerations, however, neither the widow nor any of the other legatees could take any title to any of the personal property except through the medium of an executor or administrator, so that, an administrator having been appointed, all rights in any of the personal property left by the deceased, including the right to recover his interest in that copartnership, are now vested in that administrator, and must be sued for by him. Blakely v. Smock, 96 Wis. 611 , 71 N. W. 1052 ; Buttles v. De Baun, 116 Wis. 323 , 93 N. W. 5 ; McKenney v. Minahan, 119 Wis. 651 , 97 N. W. 489 ; Rowell v. Rowell, 122 Wis. 1 , 99 N. W. 473 .

It seems also to be suggested that the complaint fails to .state a cause of action because of laches in the plaintiff. But in view of the fact that this plaintiff commenced the suit within a few months after attaining his majority, and that it is expressly alleged in the complaint that none of the beneficiaries in the estate had any knowledge of the existence of their rights thereunder, we cannot seriously consider the suggestion that laches appears on the face of the complaint.

3. Limitations. Under this head four different sections of ch. 177, Stats. 1898, are pleaded. Eor what purpose, is not very apparent. The only statute which in any wise describes the action is subd. 4, sec. 4221, Stats. 1898:

“An action which, on and before the twenty-eighth day of February in the year one thousand eight hundred and fifty-seven, was cognizable by the court of chancery, when no other limitation is prescribed in this chapter.”

An action for partnership accounting and settlement was one which, prior to 1857, was cognizable by the court of chancery. Such action, by that section, is barred within ten years after the cause of action accrues. No cause of action «can accrue until there is some person in existence who can *589 bring it, and there is no person in existence to bring an. action in favor of the estate of a deceased person, which arises after death, until an executor or administrator is appointed. Bucklin v. Ford, 5 Barb. 393 ; Dunning v. Ocean Nat. Bank, 61 N. Y. 497 ; Sanford v. Sanford, 62 N. Y. 553 ; Sambs v. Stein, 53 Wis. 569, 572 , 11 N. W. 53 . Our limitation statutes were framed in 1878, and sec. 4251,. R. S. 1878, was added in express recognition of that rule.. Revisers’ Notes, 1878. Hence this cause of action did not accrue until the appointment of plaintiff as administrator in 1903. Another section (sec. 4251, Stats. 1898) does provide that, “There being no person in existence who is authorized to bring an action thereon at the time a causé of action accrues shall not extend the time within which, according to the provisions of this chapter, an action can be commenced upon such cause of action to more than double the period otherwise prescribed by law;” but defendants have not pleaded this limitation in their demurrer, as they would, need to, in order to meet the requirements of sec.. 2651, Stats. 1898. But, in any event, the time limited by sec. 4251, Stats. 1898, from the time of the dissolution of this partnership by the death of Stehn, in 1886, has not yet expired, that time being twenty years.

The separate demurrer of Kohler’s- executors also raises sec. 3844, Stats. 1898, as a bar by limitation, but it cannot have any effect to prevent the partnership accounting, nor-the reaching of property belonging to the partnership, whatever its effect on any money recovery against the Kohler estate.

4. The separate demurrer of Hayssen also asserts, as a ground, “defect of parties.” Such demurrer, of course, cannot stand in face of the provisions of sec. 2651, Stats. 1898, which requires that a demurrer on that ground shall set forth a particular statement of the .defect. However, as we are informed by the brief, the defect complained of is the. *590 ■absence of Mrs. Stebu as a party, and tbe claim tbat sbe 'is a necessary party apparently because sbe bas tbe legal title to her deceased husband’s interest in this partnership as a specific bequest, and because sbe may have continued tbat interest and participated in running tbe business since bis death. Tbat sbe bas not tbe legal title, for two reasons, 'has already been shown. Tbat sbe may, contrary to legal right, have participated in running tbe business, is certainly no ground of demurrer when tbe complaint states no such fact. If, by reason of any acts of hers not disclosed by tbe complaint, sbe may be a necessary party, those facts must be 'brought to tbe notice of the court by some pleading able to ■assert them.

By the Court. — Order affirmed.