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We think this question must be answered in the affirmative. An executor or administrator is invested with the legal title to the personal property of the estate, but he holds that title charged with the duty of managing and disposing of the same in accordance with the provisions of the will or of the law. His duties are trust duties. In all essential respects he is regarded in courts of equity as a trustee: 2 Woerner's Law of Administration, 2d ed., secs. 383, 500. In the broad sense of the word, a trustee is one "in whom some estate, interest, or power in or affecting property is vested for the benefit of another': Hill on Trustees, 41. In this sense the term includes executors, administrators, guardians, receivers, trustees in bankruptcy, factors, bailees, and agents, and all persons vested with the title or control of property and charged with fiduciary duties in relation thereto for the benefit of another: Hill on Trustees, 41; 1 Lewin on Trusts, 1st Am. ed., 490. This is familiar law. Executors, administrators and guardians are frequently called trustees and held to the responsibilities and duties of trustees by the courts: Gillett v. Gillett, 9 Wis. 194; Hutson v. Jenson, 110 Wis. 26, 75 N. W. 689; Abrams v. United S. F. & G. Co., 127 Wis. 579, 115 Am. St. Rep. 1055, 106 N. W. 1091, 5 L. R. A., N. S., 575; Taylor v. Hill, 86 Wis. 99, 56 N. W. 738; In re Thurston, 57 Wis. 104, 15 N. W. 126; Foote v. Foote, 61 Mich. 181, 28 N. W. 90. It is well settled that beneficiaries of trust property, who are sui juris and whose rights are vested, may deal with and convey their equitable interests in the trust property, and the trustee will be required to convey the legal estate in accordance therewith if such action be not contrary to the terms of the trust: 2 Lewin on Trusts, 1st Am. ed., 684, 692. In case of an administrator the beneficiaries of the trust are the creditors of the estate and the heirs at law of the intestate. When all creditors have been paid, the heirs at law are the sole beneficiaries. 547 In the present case, the answer alleges the possession by the administrator of property far in excess of the claims allowed, and further, that the time for the presentation of claims has expired. If, therefore, the administrator be allowed to prosecute his claim to judgment, he will do so (under the allegations of the answer) solely in order that he may pay the net proceeds to the sole beneficiary who made a settlement of the claim with the defendant before the appointment of the administrator, If this settlement was freely

and fairly made, must a court allow the claim to be prosecuted again for the sole benefit of the person who made it, and who received and retains the full amount paid in settlement? The statement of the proposition seems its best answer. Such a rule would shock every natural sense of justice. Courts exist to redress or prevent wrongs, not to perpetrate them. Doubtless injustice is often inflicted by the decision of courts, but this results from defects in legal machinery, the inability of mere human lawmakers to grasp and comprehend the effect of legislation, or from the necessary imperfection of finite judgment and reasoning, rather than from any conscious or intentional departure from the dictates of justice and right. Happily, there are no arbitrary legal rules which prevent the court from administering justice in a case such as is claimed by the answer to exist. This court has already held that the sole beneficiary of a claim for the death of one person by the act or default of another under sections 4255, 4256, Statutes of 1898 (Lord Campbell's Act), has power to make a valid and binding settlement with the wrongdoer, notwithstanding the fact that any action for such damages must be brought by the personal representative of the deceased: Schmidt v. Deegan, 69 Wis. 300, 34 N. W. 83.

While the present action is brought to recover damages for the sufferings of the deceased, and belongs technically to the estate, the essential relations of the beneficiary to the claim for damages where no creditors are interested are the same as 548 in the Deegan case (69 Wis. 300, 34 N. W. 83). In both cases any recovery is for the sole benefit of the person making the settlement who is sui juris. If she could make a valid settlement, then, of course, such settlement, at least in equity, becomes a bar to the prosecution of any action for her benefit by the personal representative. The precise question here. presented was answered in the affirmative by the supreme court of Minnesota in Vail v. Anderson, 61 Minn. 552, 64 N. W. 47. The same general rule has been applied in other jurisdictions: Foote v. Foote, 61 Mich. 181, 28 N. W. 90; Johnson's Admr. v. Longmire, 39 Ala. 143; Walworth v. Abel, 52 Pa. 370; Woodhouse v. Phelps, 51 Conn. 521. See, also, 22 Cyc. 222, 223. Should issue be taken on the answer and it should appear on the trial that, although the alleged settlement was made, still there are creditors or other beneficiaries who are interested

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in the recovery, their rights will not, of course, be affected by the settlement made with Johanna Murphy.

By the Court. Order affirmed.

The Bar or Abatement of an Action for wrongful death by a settlement made by an heir or by the personal representative of the deceased is discussed in the note to Brown v. Electric Ry. Co., 70 Am. St. Rep. 683.


[130 Wis. 572, 110 N. W. 431.]

OFFICES-When Incompatible.-It is not an essential element of incompatibility at common law that the clash of duty should exist in all or in the greater part of the official functions. If one office is superior to the other in some of its principal or important duties, so that the exercise of such duties may conflict, to the public detriment, with the exercise of other important duties, then the offices are incompatible. (pp. 1043, 1044.)

OFFICES-When Incompatible. The Offices of County Judge and justice of the peace are incompatible, so that a county judge loses his right of office by qualifying as a justice of the peace and entering upon his duties as such. (p. 1044.)

Greene, Fairchild, North & Parker, for the appellant.

L. M. Sturdevant, attorney general, A. C. Titus, assistant attorney general, and McGee & Jeger, for the respondent.

573 TIMLIN, J. This action was begun October 12, 1905, and was tried upon an agreed statement of facts establishing that on April 2, 1901, the appellant was elected county judge of Oconto county, qualified, and entered upon the discharge of the duties of that office January 6, 1902. While holding said office, and on April 4, 1905, he was elected to the office of justice of the peace in the city of Oconto in said county, and accepted the latter office and entered upon the discharge of its 574 duties on May 1, 1905. Appellant was re-elected county judge on April 4, 1905, for the term beginning on the first Monday of January, 1906, and on October 18, 1905, qualified for the office last mentioned for the term last mentioned. There are six qualified and acting court commissioners in Oconto county. The term of office of the county judge is four years: Stats. 1898, sec. 2441. The learned circuit judge in his opinion filed in the case mentioned the instances of

habeas corpus in which a county judge might be called upon to review the validity of a commitment by a justice of the peace, and the statutory power of the county judge to compel the delivery of books and papers by officers to their successors which might be invoked against a justice of the peace. He rested his decision mainly on State v. Hadley, 7 Wis. 700, and Milward v. Thatcher, 2 Term Rep. 81, 7 Eng. Rul. Cas. 320, as there interpreted and applied. In Milward v. Thatcher, 2 Term Rep. 81, the action was brought to try the right of the plaintiff therein to have the office of town clerk to which he had been last elected and which was filled by the defendant, who claimed the right to hold for life. The jury having found against the right of the defendant to hold for life, it became unnecessary to decide whether or not the office of jurat held by the plaintiff was incompatible with the office of town clerk to which he was last elected and which he was seeking to hold, because, as stated in the decision, the question of incompatibility of duties would not affect his right to hold the office which he last accepted. But in reply to the argument of counsel that there was in the borough a sufficient number of jurats to hold court without the plaintiff, Ashhurst, J., said: "There may be cases in which it would be absolutely necessary for him to sit in that character, as in case of the sickness of the other members; and if there be one possible case in which he might be called upon to act, that is an answer to the argument.

575 In his separate opinion there is a like dictum by Buller, J.: "If the king by his charter say there shall be a mayor, twenty-four jurats, and a town clerk, the corporation cannot by their own act reduce the number by consolidating two of these offices."'

In State v. Hadley, 7 Wis. 700, these dicta seem to have become the basis of the decision. The relator in a contest by quo warranto for the office of police justice of the city of Watertown was held to have no right to that office, because at the time he was holding the office of justice of the peace in the same city. The court said: "We consider that the two offices are clearly incompatible with each other, and that one person cannot and should not hold both of them at the same time. In the plainest terms the charter gives the city four judicial officers of the grade of justice of the peace, while, if the relator could make good his right to the office of police justice, it would in fact have but three."

This is a strong and authoritative declaration of public policy. It is said elsewhere that the incompatibility "which shall operate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both": Mechem on Public Officers, sec. 422, and cases. Preliminary examinations in criminal cases may be held before a justice of the peace, county judge, or court commissioner: Stats. 1898, c. 195. The consolidation in one person of the offices of county judge and justice of the peace diminishes the number of examining magistrates by one. There is some conflict in the instances mentioned by the learned circuit court between the duties of county judge and those of justice of the peace. It was not an essential element of incompatibility at common law that the clash of duty should exist in all or in the greater part of the official functions. If one office was superior to the other in some of its principal or important duties, so that the 576 exercise of such duties might conflict, to the public detriment, with the exercise of other important duties in the subordinate office, then the offices are incompatible: State v. Goff, 15 R. I. 505, 2 Am. St. Rep. 921, 9 Atl. 226; State v. Buttz, 9 S. C. 156; Rex v. Tizzard, 9 Barn. & C. 418; People v. Green, 58 N. Y. 295; State v. Bus, 135 Mo. 325, 36 S. W. 636, 33 L. R. A. 616. The decision in this case, is, however, based upon State v. Hadley, 7 Wis. 700, by which we consider ourselves bound under the rule stare decisis.

We do not understand that the term of the appellant which was to begin in January, 1906, is affected by the judgment appealed from.

By the Court. The judgment of the circuit court is affirmed.

The Loss of One Office by Accepting another office incompatible therewith is the subject of a note to Attorney General v. Oakman, 86 Am. St. Rep. 578.

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