2001 Wisconsin Act 102

102,96 Section 96. 553.27 (10) of the statutes is amended to read:

553.27 (10) Every franchisor who files a notification shall file with the division, in the form that the division by rule prescribes, an irrevocable consent appointing the division to be the applicant's attorney to receive service of any lawful process in any civil action against the applicant or the applicant's successor, executor or administrator personal representative that arises under this chapter or any rule or order under this chapter after the consent has been filed, with the same force and validity as if served personally on the person filing the consent. A person who has filed a consent in connection with a previous registration or exemption under this chapter need not file another. Service may be made by leaving a copy of the process in the office of the division, but it is not effective unless the plaintiff, who may be the division in an action instituted by the division, sends notice of the service and a copy of the process by registered or certified mail to the defendant or respondent at his or her last address on file with the division, and the plaintiff's affidavit of compliance with this subsection is filed in the case on or before the return day of the process, if any, or within the time that the court allows.

102,97 Section 97. 553.73 of the statutes is amended to read:

553.73 Service of process. When any person, including any nonresident of this state, engages in conduct prohibited or made actionable by this chapter or any rule or order under this chapter, whether or not the person has filed a consent to service of process under s. 553.27 (10), and personal jurisdiction over the person cannot otherwise be obtained in this state, that conduct shall be considered equivalent to the person's appointment of the division to be the person's attorney to receive service of any lawful process in any noncriminal suit, action, or proceeding against the person or the person's successor, executor or administrator which personal representative that grows out of that conduct and which that is brought under this law or any rule or order under this chapter, with the same force and validity as if served on the person personally. Service may be made by leaving a copy of the process at the office of the division, but it is not effective unless the plaintiff, who may be the division in a suit, action, or proceeding instituted by the division, forthwith immediately sends notice of the service and a copy of the process by registered or certified mail to the defendant or respondent at his or her last-known address or takes other steps which that are reasonably calculated to give actual notice, and the plaintiff's affidavit of compliance with this section is filed in the case on or before the return day of the process, if any, or within such any further time as that the court allows.

102,98 Section 98. 601.72 (3) of the statutes is amended to read:

601.72 (3) Others affected. The commissioner and department of financial institutions shall also be attorneys for the executors, administrators or personal representatives, receivers, trustees, or other successors in interest of the persons specified in sub. (1).

102,99 Section 99. Chapter 777 (title) of the statutes is renumbered Chapter 877 (title) and amended to read:

Chapter 877
Actions by and against
executors, administrators
personal representatives, heirs,
and legatees

102,100 Section 100. 777.01 of the statutes is renumbered 877.01 and amended to read:

877.01 Tort actions on surviving causes. If the a cause of action survives under ch. 895, the executors or administrators a personal representative may maintain an action thereon on the cause of action against the wrongdoer, in every case where their in which the decedent could, if living, maintain the action and, after the wrongdoer's death, against the wrongdoer's executors or administrators. But personal representative, except that this section shall not extend to actions for slander or libel.

102,101 Section 101. 777.03 of the statutes is renumbered 877.03 and amended to read:

877.03 Executors, etc., Multiple personal representatives to be considered one. In actions an action or proceedings proceeding against executors or administrators they more than one personal representative of an estate, all of the personal representatives shall all be considered as to be representing their testator or intestate, and service the decedent. Service of the summons on one personal representative shall constitute service on all, although the plaintiff may serve each of them. Judgment shall be rendered as if all had been served and execution may be issued against the property of the testator or intestate decedent as if all had appeared. But the plaintiff may actually serve each of them.

Note: Text is reordered for more logical placement.

102,102 Section 102. 777.05 of the statutes is renumbered 877.05 and amended to read:

877.05 Judgment not to bind realty. The A decedent's real estate which belonged to any deceased person shall not be bound or in any way affected by any judgment against the deceased person's executors or administrators, nor shall it be, or liable to be sold by virtue of any execution issued upon such, any judgment against the decedent's personal representative except as provided in s. 811.25.

102,103 Section 103. 777.06 of the statutes is renumbered 877.06 and amended to read:

877.06 Executor may prosecute; set-off; judgment Prosecution and defense of actions by personal representatives; setoff of claims against decedent; judgments, how appealed and paid. (1) An executor or administrator A personal representative may commence and prosecute an action and may prosecute any action commenced by his or her predecessor or decedent for the recovery of any claim or cause of action which that survived and may have execution on any judgment. In the action the defendant may set off any claim pleadable as a counterclaim which that he or she may have against the decedent, instead of presenting it to the court. If judgment is rendered in favor of the defendant the claim shall be certified to the circuit court, and paid as other claims allowed against the estate.

(2) An administrator of effects which were left unadministered by a previous administration of the same estate A successor personal representative may bring a writ of error or appeal upon any judgment against the his or her predecessor or the decedent and shall defend any writ of error or appeal brought upon any such judgment , and against his or her predecessor or the decedent. The successor personal representative shall have the same remedies in the prosecution or defense of any action by or against the his or her predecessor or the decedent and to collect and enforce in the collection and enforcement of any judgment as the his or her predecessor or the decedent had.

102,104 Section 104. 777.07 of the statutes is renumbered 877.07 and amended to read:

877.07 Executor's executor not to sue Authority of deceased personal representative's personal representative. An executor of the will The personal representative of a deceased executor personal representative shall not meddle with the estate which that the latter deceased personal representative was entrusted with or take any charge or control thereof of the estate.

102,105 Section 105. 777.08 of the statutes is renumbered 877.08 and amended to read:

877.08 Liability as executor of his or her own wrong. No person shall be liable to an action as executor of his or her own wrong, but the wrongdoer shall be responsible to the executors or administrators personal representative for the value of any property or effects wrongfully received or taken and for all damages caused by his or her acts to the estate of the decedent.

Note: "Executor" is retained here as part of the phrase "executor of his or her own wrong," which according to Black's Law dictionary is "a stranger who takes upon him (or her) to act as an executor without any just authority," and is also known as an "executor de son tort." See also Merrill v. Comstock, 154 Wis. 434 (1913).

102,106 Section 106. 777.14 of the statutes is renumbered 877.14, and 877.14 (1) and (2), as renumbered, are amended to read:

877.14 (1) In any action or proceeding against executors or administrators a personal representative, the inventory of the decedent's property of the decedent filed by them the personal representative shall be prima facie evidence of the property which that has come to their the personal representative's possession or knowledge and of the value thereof of the property.

(2) In such an action or proceeding against a personal representative, the defendants defendant shall not be charged with choses in action specified in their the defendant's inventory unless it appear appears that the same choses in action have been collected or might have been collected with due diligence.

102,107 Section 107. 777.16 of the statutes is renumbered 877.16 and amended to read:

877.16 Foreign executors, personal representatives empowered to act. When no executor or administrator personal representative has been appointed in this state, on for the estate of any decedent who was not a resident of this state at the time of his or her death, a foreign executor or administrator thereof personal representative of the decedent, upon filing the original, or a certified copy of the original, appointment or a certified copy thereof in any circuit court in this state, may exercise any power over the estate, including sales and assignments, and may prosecute and defend any action and proceeding relating thereto to the estate and shall have all the remedies and defenses in regard to the property and to collect the collection of any demands of the estate which an executor or administrator that a personal representative appointed in this state can have or exercise in relation thereto has.

102,108 Section 108. 777.17 of the statutes is renumbered 877.17 and amended to read:

877.17 Actions against executors personal representatives; when allowed; when not. No attachment or execution may be issued against the estate of the decedent or the executor or administrator, personal representative until the expiration of the time limited for the payment of debts, except as provided in ss. 811.25 and 815.14.

102,109 Section 109. 777.18 of the statutes is renumbered 877.18 and amended to read:

877.18 Action to recover from heirs, legatees; parties defendant. Actions against the heirs or legatees and devisees of any deceased person decedent to recover the value of any assets that may have been paid or delivered to them by any executor or administrator a personal representative may be brought against all of the heirs or all of the legatees and devisees jointly or against one or more of them. If the action is not against all who are liable, the rest shall be made parties on request of the defendant.

102,110 Section 110. 777.19 of the statutes is renumbered 877.19 and amended to read:

877.19 Action against heirs and legatees; what may be recovered; costs. If an action mentioned described in s. 777.18 877.18 is brought, the plaintiff must show that he or she has been or will be unable, with due diligence, to collect all or part of his or her debt or some part thereof by proceedings in the circuit court or from the personal representatives representative of the decedent. In that event, except as limited by s. 859.23, the plaintiff may recover the value of all the assets received by all the defendants if necessary to satisfy his or her demand, and the amount of the recovery shall be apportioned among the defendants in proportion to the value of the property received by each of them; and the costs. Costs of the action shall be apportioned in like manner. No allowance or deduction may be made from the amount on account of other heirs or legatees or devisees to whom assets have also been delivered or paid. The judgment shall express the amount recovered against each defendant for damages and costs.

102,111 Section 111. 777.20 of the statutes is renumbered 877.20 and amended to read:

877.20 Contribution among heirs. Any of the heirs heir against whom recovery shall be had pursuant to ss. 777.18 and 777.19 is made under ss. 877.18 and 877.19 may maintain an action against the other heirs to whom any such assets may have been paid or delivered by the personal representative, jointly or against any of them separately, for a just and equal contribution;, and shall be entitled to recover of from each defendant an amount which shall be that is in the same proportion to the sum collected of from the plaintiff as the value of the assets delivered to such that defendant bore to the value of all the assets delivered to all the heirs.

102,112 Section 112. 777.21 (title) of the statutes is renumbered 877.21 (title).

102,113 Section 113. 777.21 (1) of the statutes is renumbered 877.21 (1) (intro.) and amended to read:

877.21 (1) (intro.) If the an action is brought against all the legatees and devisees, the plaintiff shall not recover unless the plaintiff shows, in addition to the facts required to be shown in an action against the heirs: that, any of the following:

(a) That no assets were delivered by the executor or administrator personal representative to the heirs; or that.

(b) That the value of such the assets delivered to the heirs has been recovered by some other creditor; or that such.

(c) That the assets delivered by the personal representative to the heirs are not sufficient to satisfy the demands of the plaintiff; and in the last case that the plaintiff is entitled to recover the deficiency.

102,114 Section 114. 777.21 (2) of the statutes is renumbered 877.21 (2) and amended to read:

877.21 (2) If the an action be is brought against a preferred legatee or devisee or a preferred class, the plaintiff must also show the same matters as to the legatee or devisee or class to whom the defendants are preferred as is above required to be shown under sub. (1) as to the heirs. And any

(2m) Any legatee or devisee against whom recovery shall be had is made may maintain an action for contribution against others of the same class as heirs may among themselves.

102,115 Section 115. 777.21 (3) of the statutes is renumbered 877.21 (3) and amended to read:

877.21 (3) Specific legacies and devises are preferred to residuary ones legacies and devises.

102,116 Section 116. 777.22 of the statutes is renumbered 877.22 and amended to read:

877.22 Payment a discharge. In case of any judgment against several heirs or, legatees , or devisees, the payment or satisfaction of the amount recovered against any one of the defendants shall discharge such that defendant from the judgment and from execution thereon on the judgment.

102,117 Section 117. 777.26 of the statutes is renumbered 877.26 and amended to read:

877.26 Accounts as evidence. The account of the executor or administrator personal representative, settled by the proper circuit court, may be used in any action brought under the provisions of this chapter as presumptive evidence of any matter of fact stated therein in the account.

102,118 Section 118. 777.28 of the statutes is renumbered 877.28 and amended to read:

877.28 Limit of liability. When part of the plaintiff's debt has been collected, the plaintiff can may recover only the residue remaining unpaid; and when. When the action is against the devisees and legatees, the plaintiff shall may recover only such that part thereof as shall of the debt that is not be recoverable from the heirs.

102,119 Section 119. 777.29 of the statutes is renumbered 877.29 and amended to read:

877.29 Debts charged upon realty not affected. Nothing in this chapter shall affect the liability of heirs or beneficiaries for any debt of their decedent, which that was by the decedent's will expressly charged upon property or made payable exclusively out of particular property or of any beneficiary made exclusively liable for any such the debt.

102,120 Section 120. 777.32 of the statutes is renumbered 877.32 and amended to read:

877.32 Judgment, how collected. If any real estate which that descended or was devised to any defendant is not aliened by the defendant before the filing of a notice of the pendency of the an action , the court shall adjudge that the debt of owing to the plaintiff, or the portion thereof which of the debt that the plaintiff is entitled to recover against such the defendant, shall be levied only out of such the real estate so descended or devised, and not otherwise.

102,121 Section 121. 777.36 of the statutes is renumbered 877.36, and 877.36 (intro.), as renumbered, is amended to read:

877.36 Debts, order of payment. (intro.) When the The next of kin, legatees, heirs, or devisees who are liable for demands against the decedent as prescribed in under this chapter they shall be given preference in the payment of the same and shall be liable therefor for demands against the estate in the following order:

102,122 Section 122. 777.38 of the statutes is renumbered 877.38 and amended to read:

877.38 Defenses. The If the decedent's next of kin, legatees, heirs, and devisees may show that there are unsatisfied debts of the decedent that are of a class prior class unsatisfied or that there are unpaid debts of the same class with that to or the same as the class of the debt on which the action is brought; and if it appear that the value of the personal property delivered to them or of the real estate descended or devised to them does not exceed the debts of a prior class prior to that of the debt on which the action is brought, judgment shall be rendered in their favor.

102,123 Section 123. 777.39 of the statutes is renumbered 877.39 and amended to read:

877.39 Extent of liability. If the personal property delivered to such the decedent's next of kin or legatee, legatees or if the real estate descended or devised to such the decedent's heirs or devisees, exceed exceeds the amount of debts which that are entitled to a preference over the debt for which the an action is brought, judgment shall be rendered against them the next of kin, legatees, heirs, or devisees only for such a sum as shall be that is a just proportion to the other debts of the same class with that on which the action is brought.

102,124 Section 124. 777.40 of the statutes is renumbered 877.40 and amended to read:

877.40 Preferred debts deducted. If any debt of the decedent that is of the same or a prior class to that on which the an action is brought, or of the same class, shall have has been paid by any next of kin, legatees, heirs or devisees they legatee, heir, or devisee, that person may give evidence of such the payment, and the amount of debts so paid shall be estimated in ascertaining the amount to be recovered in the same manner as if such those paid debts were outstanding and unpaid as prescribed in ss. 777.38 877.38 and 777.39 877.39.

102,125 Section 125. 777.41 of the statutes is renumbered 877.41 (intro.) and amended to read:

877.41 Rights and liabilities of posthumous child and witness to will. (intro.) A child born after the making of a will who is entitled to succeed to a portion of any of the real or personal testator's property or both of the testator, or a witness to a will who is entitled to recover any portion of such the testator's property from the legatees or devisees, shall have:

(1) Have the same rights and remedies to compel a distribution of the personal property and partition of the real estate or to recover of from the legatees or devisees such the portion of the property as that belongs to him or her, or to as any other person entitled to any part of the estate;

(2) Have the same rights and remedies to compel a contribution from other persons interested in the estate, or to gain possession of the property, as any other persons who are person entitled to any part of such the estate; and shall be

(3) Be equally liable to the creditors of the decedent under this chapter as any other person entitled to any part of the estate.

102,126 Section 126. 777.42 of the statutes is renumbered 877.42 and amended to read:

877.42 Estate of deceased heir liable. The estate of any heir, devisee, legatee, or next of kin of a decedent who dies before paying his or her just share of the decedent's debts is liable therefor for his or her share of the decedent's debts, as for a personal debt, to the same extent to which that he or she would have been liable if living.

102,127 Section 127. 803.01 (2) of the statutes is amended to read:

803.01 (2) Representatives. A personal representative, executor, administrator, guardian, bailee, or trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party's name without joining the person for whose benefit the action is brought. A partner asserting a partnership claim may sue in the partner's name without joining the other members of the partnership, but the partner shall indicate in the pleading that the claim asserted belongs to the partnership.

102,128 Section 128. 806.04 (4) (intro.) of the statutes is amended to read:

806.04 (4) Representatives, etc. (intro.) Any person interested as or through a personal representative, executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, mental incompetent, or insolvent, may have a declaration of rights or legal relations in respect thereto to the administration of the trust or estate for any of the following purposes:

102,129 Section 129. 806.04 (4) (b) of the statutes is amended to read:

806.04 (4) (b) To direct the personal representatives , executors, administrators or trustees to do or abstain from doing any particular act in their fiduciary capacity; or

102,130 Section 130. 813.026 of the statutes is amended to read:

813.026 Remedy against heirs and legatees; temporary injunction; receivership; judgment. In an action, in a court of record, for damages founded upon contract or upon a judgment, when it appears that the defendant is interested, as heir, legatee, or devisee, in the estate of a decedent and that the defendant's property that is liable to execution is probably insufficient to satisfy the plaintiff's claim for damages, the defendant may be enjoined by the court, pending the action, from assigning or otherwise disposing of the defendant's interest in such the estate;, and a receiver therefor for the defendant's interest may be appointed. The judgment may compel the defendant to transfer sufficient of the defendant's interest to satisfy the judgment or may adjudge such the transfer. The remedy given by this section is in addition to that given by proceedings supplementary to execution under ch. 816. If a receiver is appointed, he or she shall give prompt notice thereof of the appointment to the administrator or executor personal representative.

102,131 Section 131. 814.14 of the statutes is renumbered 814.14 (1) (a) and amended to read:

814.14 (1) (a) In Except as provided in par. (b) or unless otherwise specifically provided in any action or proceeding prosecuted or defended in any court in Wisconsin this state by an executor, administrator a personal representative, guardian ad litem, trustee of an express trust, general guardian or a person expressly authorized by statute, unless otherwise specially provided, costs shall may be recovered as in an action by and or against a person prosecuting or defending in the person's own right; but such costs.

(b) Except in cases in which the plaintiff or defendant is guilty of mismanagement or bad faith in the action, proceeding, or defense of the action, costs recovered under par. (a) shall be chargeable only upon or collected of from the estate, fund, or party represented, unless. In cases in which the plaintiff or defendant is guilty of mismanagement or bad faith in the action, proceeding, or defense of the action, the court shall direct that the same to be costs recovered under par. (a) shall be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action, proceeding or defense.

(2) In addition to other costs, all actions or proceedings in which any receiver, assignee, guardian, guardian ad litem, executor, administrator, or other fiduciary may be entitled to recover costs, the fiduciary may recover in addition to other costs, such any sum that the fiduciary paid to a company, authorized by the laws of this state, so to do act as the fiduciary's surety, for becoming the fiduciary's surety upon any bond or other obligation given by the fiduciary in the fiduciary's representative capacity, in such the action or proceeding, pursuant to law or the order of any court or judge, as may be allowed by the court or judge, in which or before whom the fiduciary accounts, not exceeding the lesser of 2% per year on the amount secured by such the obligation , or any less the actual amount which the fiduciary may have paid any such to the company for such purpose.

102,132 Section 132. 814.28 (1) of the statutes is amended to read:

814.28 (1) Defendant may require. Except as otherwise provided by s. 814.29, the defendant may require the plaintiffs to file security for costs if the plaintiffs are all nonresidents; or are foreign corporations, nonresident executors, administrators personal representatives, guardians, trustees, or receivers; or are trustees or assignees of any debtor; or are imprisoned for crime for terms less than life; or shall take issue upon the answer of the garnishee.