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Gorny v. Trustees of Milwaukee County Orphans Board

December 3, 1937

GORNY ET AL.
v.
TRUSTEES OF MILWAUKEE COUNTY ORPHANS BOARD



Appeal from the District Court of the United States for the Eastern District of Wisconsin; Ferdinand A. Geiger, Judge.

Author: Major

Before EVANS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

MAJOR, Circuit Judge.

This is an appeal from a decree obtained in an equity action instituted by appellees September 13, 1935, to recover from appellant the sum of $20,909.99, being the escheated estate of Mary Bulewicz, deceased, and paid to appellant in conformity with a decree of the county court of

Milwaukee county, entered in probate February 26, 1926. The decree was entered pursuant to section 2, chapter 471, Priv. & Loc.Laws 1871 of Wisconsin, as follows: "If, after the expiration of one year from the granting of letters of administration to the public administrator on any estate, no heirs shall appear or be heard from, the county court shall, by decree, direct and order the public administrator to transfer and pay over the residue of the personal estate of the deceased to the trustees of the Milwaukee county orphans' board, and such trustees shall forthwith invest the moneys which may be paid over to them by the public administrator, in bonds of the United States or of this state, the interest of which shall be used for the purposes prescribed in the act of incorporation of said trustees and the principal shall be subject to the order of the county court for the period of five years; if at any time within five years after such money have been paid over to the said trustees as aforesaid, any heir shall appear before said county court and make satisfactory proof that he is entitled to the residue or any moiety of such moneys, the county court may, by order, direct the said trustee to pay over to said heir so much of said principal as he may be entitled to; such appearance shall be made by petition, and a notice of said application shall be served on the president of said board at least ten days prior thereto; but if no heir shall appear within five years after such moneys have been paid over as aforesaid, then such principal shall vest absolutely in the trustees of the Milwaukee county orphans' board, for the uses and purposes prescribed in the act of incorporation of said board."

Appellant is a creature of the Wisconsin statute and is required to hold in trust all property turned over to it for the benefit and support of certain enumerated orphans designated by said statute.

Relying upon the above statute, a part of the appellees (referred to as foreign heirs), on February 25, 1931, filed a petition in the county court asking for refund of said escheated estate. A hearing was had upon said petition and the same taken under advisement. Prior to the announcement of a decision, the Supreme Court of Wisconsin (In re Lillian Payne's Estate, 208 Wis. 142, 242 N.W. 553), held the provision about quoted unconstitutional. On June 21, 1932, certain other of the appellees (termed American heirs) filed their petition in the county court praying for a refund to them from the state of Wisconsin of one-half of the estate in question.

October 14, 1932, the county court dismissed both of said petitions; the first because of the decision of the Supreme Court decreeing the above-quoted provision unconstitutional, and the second because the state of Wisconsin did not have the funds in question in its possession. This ruling was, on September 12, 1933, affirmed by the Supreme Court of Wisconsin. In re Estate of Mary Bulewicz, deceased, 212 Wis. 426, 249 N.W. 534. The state of Wisconsin instituted an action against appellant to recover the escheated fund which the Supreme Court (In re Trustees of Milwaukee County Orphans' Board, 218 Wis. 518, 261 N.W. 676) denied on the theory that the judgment of the county court of February 26, 1926, was res adjudicata as to the state, even though based upon the unconstitutional provision. Following that decision the present action was commenced. The depositions of certain witnesses which had been taken for and used in the county court proceeding were, over objection of appellant, admitted in evidence in this proceeding. The identity of the deceased is in dispute.

The issues raised by this appeal are:

(1) Is the final decree entered by the county court of Milwaukee county on February 26, 1926, finding that Mary Bulewicz died without heirs, res adjudicata as to the appellees and immune from collateral attack?

(2) Is there any right of refund to the escheated estate of Mary Bulewicz, under either state or federal law?

(3) Has the statute of limitations run as to any rights claimed by the appellees?

(4) Did the court err in permitting the appellees to use in this case, depositions which were taken for use in proceedings in the county court of Milwaukee county?

(5) Was Mary Gorny, who was born in 1862 in Gross Schoenbrueck, Poland, the same person as Mary Bluewicz, who ...


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