
    Tryon vs. Farnsworth and another, Executors.
    
      Administration of estates — County courts, jurisdiction of.
    
    1. In this state the county courts have plenary jurisdiction in all matters of the administration, settlement and distribution of the estates'of decedents; and their jurisdiction is in considerable part concurrent with that of courts of equity.
    2. Where, upon the death of an intestate, his widow became entitled, under the statute, to a life interest in the surplus of the proceeds of real estate duly sold to pay debts (R. S., oh. 92, sec. 1, subd. 3), and after the death of the widow, testate, the heirs-at-law of said intestate presented to the county court their claim to such surplus, as a demand against the widow’s estate: Held, that the county court had power to allow the claim, and it was error to refuse its allowance.
    3. The record in this case shows that, on, etc., there was found in the hands of the administrator of gaid intestate a certain sum, after paying all debts of the estate and expenses of administration, and that thereupon the county court, “ by an order directed said sum to be paid by said administrator to the widow of said deceased, and the same was paid to her on that day, and said administrator was finally discharged,” etc. Held, that this does not show any adjudication by the county court as to whether said widow had an absolute right to said surplus, or only a life interest therein, and that question is still open.
    4. Only one-of the heirs-at-law of said intestate having appealed from the order of the county court refusing to allow their claim against the widow’s estate for said surplus, it was error for the circuit court to render judgment against the executors of said estate for the whole amount of such surplus.
    5. It is competent for the circuit court, however, by its own judgment, to require the executors to pay to the appellant so much of said surplus as may be adjudged to belong to him as heir of said intestate, and not to be assets of the widow’s estate; and it need not send the cause back to the county court to have such order made.
    APPEAL from tbe Circuit Court for Bodge county.
    In November, 1862, one Josiab A. Tryon died at tbe county of Eond du Lac, intestate, leaving no issue, or father or mother, but leaving surviving him Ellen A. Tryon, his widow, two brothers, of whom the plaintiff is one, and seventeen nephews and nieces, seven of whom are children of a deceased brother, and the remainder of whom are the children of a deceased sister of the said Josiah A. Tryon.
    The administrator of the estate of Josiah A. Tryon, applied to the county court of Eond du Lac county, and obtained leave to sell the real estate of the deceased, exclusive of the homestead, for the purposes of paying debts against the estate and the expenses of administration. Such real estate was accordingly sold in 1865 for $8,390, and the sale thereof was duly -confirmed by the court. Soon after, and on the 16th day of November, 1865, tbe administrator bad a final settlement' of bis accounts in tbe county court, on wbicb settlement it was found that be bad in bis bands as sucb administrator, tbe sum of $1,826.31, belonging to tbe estate, after tbe payment of all debts and expenses. Tbe county court thereupon made an order or judgment wbicb directed tbe administrator to pay over sucb surplus to tbe widow, and be accordingly did so. Tbis order or judgment it is claimed was made upon tbe petition of Mrs. Trjmn, wbo claimed therein that she was legally entitled to sucb surplus.
    Ellen A. Tryon died testate in May, 1870, leaving property exceeding in value $8,000, and tbe defendants are tbe duly qualified executors of her last will and testament.
    Tbe beirs-at-law of tbe above mentioned Josiab A. Tryon, claiming that bis widow bad only a life estate in sucb surplus, and that after her death it belonged to them, presented their claim therefor against the estate of Ellen A. Tryon to tbe county court. That court disallowed tbe claim, whereupon tbe plaintiff, Joseph A. Tryon, alone appealed to tbe circuit court
    Tbe circuit court gave judgment against tbe executors for tbe whole amount of tbe surplus, and directed tbe same to be paid by them out of tbe estate of Mrs. Tryon, to tbe nineteen heirs of Josiab A. Tryon, in certain proportions, and tbe sum payable to each is ascertained and stated in tbe judgment.
    Tbe executors have appealed from sucb judgment to tbis court.
    
      Edward S. Bragg, for appellants.
    
      A. M. Blair, for respondent.
   LyON, J.

Tbe record shows that personal property of the estate of Josiah A. Tryon came into the bands of the administrator of that estate, and although it is not expressly made to appear that the proceeds thereof were applied in payment of the debts against the estate, the contrary does not appear; and inasmuch as the statutes (Tayl. Sts., 1221, § 6), provides that “thepersonal estate of the deceased wbicb shall come into the bands of the executor or administrator, shall be first chargeable with the payment of the debts and expenses, we must presume that the administrator and the county court did their duty, and that the proceeds of the personal property were so applied. It follows from this that the surplus remaining in the bands of the administrator after the estate was settled, and wbicb was paid over to the widow of the intestate by order of the county court, consisted solely of the balance of the proceeds of the sale of the real estate. It follows, also, that such surplus must, for the purposes of a distribution thereof, be considered as real estate, “ and disposed of among the persons and in the same proportions as the real estate would have been, by the laws of this state, if it bad not been sold.” T. S., 1193, § 57. When the intestate died, and also when bis estate was settled and the surplus distributed, the rule of descent applicable thereto was the following : “ If be, (the intestate), shall leave no issue nor father, bis estate shall descend to bis widow during her natural life, and after her decease, in equal shares to bis brothers and sisters, and to the children of any deceased brother or sister by right of representation.” R. S. 1858, Ch. 92, Sec. 1, subdivision 3.

Hence, Ellen A. Tryon, the widow of the intestate Josiah A. Tryon, was only entitled to the use of the surplus $1,826.34, re-maming after the estate of the intestate was settled, during her natural life, and after her decease, the same descended to the brothers, and to the children of the deceased brother and sister, of the intestate in the proportions prescribed by the statute. It was deemed proper briefly to state these propositions, although it is not understood that they are seriously controverted by the learned counsel for the defendants.

We will now proceed to examine in their order, the grounds urged on behalf of the defendants for a reversal of the judgment of the circuit court.

I. It is said that this is a matter cognizable exclusively by a court of equity, and tbat, therefore, the county court bad no jurisdiction to make the order from wbicb the appeal to the circuit court was taken.

Tbat a court of equity bas jurisdiction of tbis subject matter, and would take cognizance of an action brought for the purpose of compelling the executors of Mrs. Tryon to pay the surplus of her husband’s estate received by her, to the heirs-at-law of her deceased husband, is doubtless true. Tbe authorities cited by counsel for the defendants show tbis, but they do not seem to establish the doctrine tbat probate courts have not jurisdiction of the same subject matter in tbis state. Tbe county courts have plenary jurisdiction in all matters of the administration, settlement and distribution of the estates of deceased persons, and much of tbis jurisdiction is of an equitable character and is necessarily concurrent with tbat of courts of equity. Tbe claim of the heirs of Josiab A. Tryon against the executors of bis widow, is purely a matter of administration and distribution. Tbe question involved is, whether a sum of money wbicb bas come to the bands of the executors as an asset of the estate of Mrs. Tryon is really such asset to be distributed to her heirs or legatees, or whether it is an asset of the estate of her deceased husband wbicb should be distributed to bis heirs. ¥e cannot doubt the jurisdiction of the county court in the premises.

II. It is said tbat tbe whole subject of tbe alleged claim is res ad judicata so long as tbe order or judgment of tbe county court distributing tbe surplus to Mrs. Tryon remains unre-versed.

We find no bill of exceptions in tbe record, and, therefore, tbe evidence is not before us. We can only ascertain tbe character of tbe order or judgment of tbe county court from tbe findings of fact by tbe circuit court, tbe seventh of wbicb, and tbe only one tbat contains any reference to tbis subject, is as follows : “ That on tbe said 16th day of November, 1865, said county court by an order, directed tbe said sum of $1,826.34 to be paid by said administrator to Ellen A. Tryon, tbe widow of said deceased, tbat tbe same was paid to ber on tbat day, and said administrator was finally discharged from his trust by said court.”

Here is no evidence that the county court adjudicated the matter and decided and adjudged that Mrs. Tryon was the absolute owner of the surplus. On the contrary, the order is entirely consistent with the theory that the county court simply held that she was entitled to the use of the money for life. That court not having determined whether she was entitled to the surplus absolutely, or only for life, the question remains open. Howe v. McGivern, 25 Wis. 525.

III. The next reason assigned why the judgment should be reversed is, that it should only have been rendered for the heir who appealed from the order of the county court. We think that this point is well taken. We are aware of no provision of law which authorised the circuit court to give judgment for parties affected by the order of the county court who did not appeal therefrom. Until such persons appeal therefrom, or take some other steps to have that order set aside, the presumption is that they are satisfied with it, and do not wish that it should be disturbed. For this reason the judgment of the circuit court must be reversed.

IY. No good reason is perceived why the claim of the plaintiff should be certified back to the county court, to be paid with the claims of creditors in due course of administration. Tbe judgment of the circuit court is to the effect that certain moneys which have come to the bands of the defendants as executors, are not assets of the estate of their testate, and liable for debts and demands against the same, but are really assets of another estate, to wit., the estate of Josiab A. Tryon, and belong absolutely to bis heirs. Their position is the same as though the lands belonging to the estate of the latter bad not been sold, but bad come to the possession of the executors as assets of the estate of Mrs. Tryon. In that case the county court, by viuetr of its plenary jurisdiction, in matters of the administration and distribution of estates of deceased persons, undoubtedly has the power to distribute the lands to the heirs of Josiah A. Tryon, and to authorize and direct the executors to surrender the same to them, and it would be entirely immaterial whether the estate of Mrs. Tryon is solvent or insolvent. And should the county court order the land to be distributed as the estate of Mrs. Tryon, the circuit court, on appeal, would not only reverse the order, but would adjudge the land to the appellants (or their proportion thereof to such of them as appealed), and would also direct the executors of Mrs. Tryon to surrender the same to such heirs.

The fact that in this case the subject matter of the controversy is money instead of land, is quite immaterial. It is in the hands of the executors; and creditors, heirs or legatees of their testate have no interest whatever in it. It belongs absolutely to the heirs of Josiah A. Tryon, and the circuit court may as well direct the proportion thereof belonging to this appellant to be paid to him by the executors, as to send the case back to the county court with directions to that court to make the same order.

The judgment of the circuit court is reversed and .the cause must be remanded with directions to that court to enter judgment for the appellant in that court for his individual proportion of the surplus of the estate of Josiah A. Tryon, (being one-fourth thereof,) which was paid over to his widow, Ellen A. Tryon, to be paid by the executors out of the estate of the latter. The judgment of this court must also be certified to the Fond du Lac county court, pursuant to law.

By the Cowrt.~ — Ordered accordingly.  