COURT OF APPEALS DECISION DATED AND RELEASED December 27, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0694
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
In re the Estate of
Virginia M. Mahler:
RICK MONTGOMERY and
BETH MONTGOMERY,
Petitioners-Appellants,
v.
CARL J. MAHLER,
Respondent.
APPEAL from an order of
the circuit court for Forest County:
ROBERT E. KINNEY, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Rick and Beth Montgomery appeal a trial court order
that dismissed their petition for ancillary probate of the will of Virginia
Mahler, who owned real estate in Wisconsin but whose domicile at death was
Illinois. The trial court ruled that
the Montgomerys lacked standing. The
Montgomerys, who are not related to Virginia, claim standing to seek probate on
the basis of a prejudgment attachment lien they filed against Virginia's
Wisconsin real estate. The prejudgment
attachment lien issued out of a tort lawsuit the Montgomerys were pursuing
against Carl Mahler, Virginia's son, who occupied Virginia's Wisconsin real
estate. By the time that the probate
court dismissed the Montgomerys' petition, the Montgomerys had obtained a
judgment against Carl, with their attachment lien thereby having ripened into a
judgment lien.
The Montgomerys rely on
§ 856.07(2), Stats., which
allows "anyone who has an interest in the property which is or may be part
of the estate" to seek the will's probate. For several reasons, the trial court ruled that the Montgomerys'
attachment lien did not give them such an interest in Virginia's Wisconsin real
estate: (1) Carl, the Montgomerys'
debtor, had no present interest in the real estate that their lien could reach,
despite being an heir and beneficiary under Virginia's will; (2) various
statutes barred attachment and execution on property of the estate by an heir's
creditor; and (3) the real estate was exempt from attachment and execution
as custodia legis. The trial
court also denied the Montgomerys' attorney's fees for probating the
estate. We agree that the Montgomerys
had no standing to seek the probate of Virginia's will. We therefore affirm the trial court's order.
Whether viewed as
prejudgment attachment creditors or judgment creditors, the Montgomerys did not
have standing. In order to petition for
administration, they needed to demonstrate an interest in the real estate. Their attachment lien or judgment lien did
not provide the requisite interest for two reasons. First, a lien is not an interest in property under
§ 856.07(2), Stats. Liens are generally considered encumbrances
on, not interests in, property. See
Black's Law Dictionary 832 (5th
ed. 1979). Second, Carl had no interest
in the real estate that the liens would reach.
Although at common law defeasible title to real estate vested in the
beneficiary immediately upon the death of the decedent, see Hinman
v. Hinman, 126 Wis. 191, 193-94, 105 N.W. 788, 789 (1905), Atkinson, Wills § 199, at 537-38
(1937), title now passes to the personal representative by virtue of
legislation enacted in 1969. See
§ 857.01, Stats. Here, there is no personal representative;
nonetheless, we do not believe that this revives the common law rule giving
Carl defeasible title to the real estate.
At best, Carl has an
intangible future and contingent interest in his mother's unprobated
estate. Judgment creditors may reach
this intangible interest not through attachment or judgment liens, but through
the judicial assignment of Carl's intangible interest to a receiver or judicial
trustee appointed by a court of equity.
See Dobbs, Remedies
§ 1.3 at 11, and § 2.12 at 130 n. 43 (1973); Ager v. Murray, 105
U.S. 126, 126-32 (1881). The proceeding
is in the nature of a judgment creditor's suit or bill. See Dobbs,
§ 1.3 at 11 and § 2.12 at 130 n. 43; Ager, 105 U.S. at 126-32; Black's Law Dictionary 333 (5th ed.
1979). Pursuant to the equity
receivership or trusteeship, the receiver or judicial trustee, as assignee of Carl's
intangible interest as beneficiary or heir, may take whatever action is
equitable to satisfy the judgment, such as selling Carl's intangible interest
or petitioning the probate court for the probate of Virginia's will under
§ 856.07(1), Stats., as a "person
interested." See Hanley
v. Kraftczyk, 119 Wis. 352, 357, 96 N.W. 820, 821 (1903) (assignee of
heir's interest may seek probate of will); see also Dobbs, § 1.3 at 11 and § 2.12 at 130
n.43; Candee v. Egan, 84 Wis.2d 348, 361, 267 N.W.2d 890, 897 (1978);
Arzbacher v. Mayer, 53 Wis. 380, 10 N.W. 440 (1881);
§§ 813.026 and 816.04, Stats.
The equity receiver or
trustee takes such action for the benefit of the judgment creditor under the
supervision of the court of equity making the appointment and assignment. See generally 1 Clark, Receivers §§ 204-215, at 310-25
(3d ed. 1959). In addition, in lieu of
a receivership or trusteeship, judgment creditors may have other equitable
remedies available to them. These may
include, but are not limited to, direct judicial assignment of Carl's
intangible interest to the judgment creditor to satisfy the judgment. See Dobbs,
§ 1.3 at 11; Ager, 105 U.S. at 126-32. Under this remedy, the judgment creditor, as assignee of the
intangible interest and under the court's supervision, may sell the intangible
interest or petition for the probate of Virginia's will under § 856.07(1),
Stats. See Hanley, 119 Wis. at 357, 96 N.W. at
821. We have described these remedies
for purposes of illustration. We do not
attempt here to identify all the available supplementary and equitable remedies
judgment creditors may have for reaching intangible interests. Last, as the Montgomerys have no standing to
seek administration, the trial court properly denied them attorney's fees for
probating an estate.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.