¶1By the Court,
¶2The administration bond of the respondent Lord was properly received in evidence. The statute requiring the approval of the county judge is directory, and bis omission did not deprive him of jurisdiction. The granting of letters without such approval inform, was at most but an irregularity, which could only be taken advantage of by appeal from the order.
¶3The record in the case of Emma Cameron vs. Daniel Cameron, jr., was improperly admitted. As evidence that the title of the lands in controversy in that action was not in the respondents’ intestate, it was inadmissible for the reason that the appellant and heir at law was not a party, and the action was prosecuted by Emma Cameron in her individual and not in her representative capacity. The appellant, therefore, could not be bound, nor his rights affected, by the judgment. It was inadmissible for the purpose of charging the estate with the expenses incident to that litigation, for reasons which will presently be more fully noticed.
¶4The referee was correct in allowing the deposition of the witness Ralph C. Bowles to be read. He was a competent witness at the time his testimony was given, and his subsequent marriage with Mrs. Cameron did not affect that testimony, the cause for taking the deposition still existing. If the cause for taking the deposition had been removed, and he had been offered as a witness at the trial, the objection that he was then incompetent would have presented a very different question.
¶5The objections for the want of proper notice of the time and place of taking the deposition, and of a proper certificate by the magistrate, do not appear to have been made before the referee, and therefore cannot now be urged. That for want of sufficient notice was waived by the appearance and cross-examination of the appellant’s counsel. Miller vs. McDonald, 13 Wis., 673.
¶6The moneys received by Mrs. Cameron for rent of *6owne(^ ^ Daniel Cameron, jr., are not proper charges in fa-of the estate, and the referee was right in rejecting those items. The conveyances of September 18th, 1850, and March 25th, 1852, from Peter Cameron to Daniel Cameron, jr., show title in the latter, and that the former was not seized at the time of his death. The lands thus conveyed were, therefore, improperly includedin the inventory and appraise-ments of assets, and it was competent for Mrs. Cameron to avoid her prima facie liability by showing the facts. The inventory is not conclusive either for or against the administrator, but is open to denial or explanation. Willoughby vs. McCluer, 2 Wend., 608. Mrs. Cameron is answerable to Daniel Cameron, jr., for the rents, and ought not to be charged twice, or to account to the estate for what never, in fact, belonged to it.
¶7All the items and charges for Mrs. Cameron's personal services as administratrix and for expenses in and about the two suits — that above named, and that of Daniel Cameron, sen. vs. Emma Cameron, Cyrus K. Lord and Angus Cameron — should have been rejected. If the terms “all just expenses of administering said estate,” in the decree and stipulation in. the latter action, can be construed to include charges for personal services, which seems doubtful, the other stipulation of the same date, which, or a copy, was designed to be filed in the probate court, as the basis of proceedings to be had therein, shows very clearly that no pay for such services was to be demanded. The last stipulation is very explicit upon this point, it being expressly provided that in the filing and settlement of her accounts, she was to claim “no remuneration for her services as administratrix, and no allowance whatever for any disbursements or expenses made or incurred in or about any suits brought by her, or defended by her, in reference to the said estate, or for any expenses or disbursements saving the ordinary expenses of administration, funeral expenses,” &c. The legal effect of the two stipulations is very nearly the same, and were we to reject the latter entirely, and place our decision alone upon the stipulation which constituted the basis of the decree, the result must be the same, except as to the items for personal services *7pertaining to matters other than tbe litigation of tbe two suits in question. Conceding that the fees of the were comprehended by the words “ all just expenses of administering said estate,” the specification of that item and the items for moneys expended in the payment of just debts against the estate, and the $1100 in lieu of any claim which she might have as widow or heir, must, by a very familiar rule of construction, be held to operate as an exclusion of all other items and charges. In view of the situation of the parties, the nature of their controversies, and the settlement perfected, it cannot be supposed that they contemplated that the expenses of the litigation thus closed were to constitute a proper charge in favor of the administratrix against the estate. If such was the intention, they were certainly very unfortunate in the choice of language to express it.
¶8But we think the evidence did not authorize the referee to disregard the stipulation designed for use in the probate court as the basis of settlement. The testimony of $fr. Lord, although it raises a strong suspicion that this stipulation was to have been surrendered and cancelled, is not of- that clear and positive character which the nature of the case requires. He speaks very doubtfully upon the subject, and is directly opposed by Daniel Cameron, jr., who says positively that it was executed and delivered at the same time with the stipulations upon which the decrees were founded, and as a part of the same transaction. Evidence to impeach an instrument thus found in the possession of the adverse party, ought to be as clear and unequivocal as that required by law to establish mistakes in such instruments. The rule in such cases is, that the mistake must be established beyond any reasonable doubt. Lake vs. Meacham, 13 Wis., 355, and authorities there cited.
¶9But if we are wrong in both these positions, still the estate ought not to be charged with the expenses of the suits, or Mrs. Gamer on's time in attending to them. That against Daniel Cameron, jr., was clearly prosecuted for Mrs. Cameron's sole benefit, and in no way connected with the affairs of the estate. She sued in her individual capacity, and the burden of her complaint from beginning to end was the in-*8j ■yjrbiob sbe would sustain in respect to Her dower, if Cameron, jr., were permitted to set up his claims. It geems an idle waste of words to talk about that proceeding having been taken in behalf of the estate. The same is true of the action of Daniel Cameron, sen., against herself'and her co-administrators. She was charged with having intruded into the affairs of the estate upon the pretense that sbe was the widow of the deceased and as such entitled to administer — with a sort of usurpation of the office of administratrix, which, though it was obtained according to the forms of law, was nevertheless fraudulent and illegal. She contested the action, but her co-defendants made no answer. By the stipulation and settlement the claims of the plaintiff were substantially conceded, and she consented to retire from the office which she had thus obtained. It would be remarkable, indeed, if she could turn around and charge the estate or heir at law with the expenses of such litigation.
¶10The charges of the respondent Lord for expenses and services as administrator and counsel in the same action, should have been disallowed. They are not proper charges against the estate. He made no defense, and it was a matter of no interest to him as administrator whether Mrs. Cameron was successful or not Aside from the litigation of those suits, which did not pertain to the administration, the case appears not- to have been one of unusual difficulty or responsibility. Mr. Lord is, therefore, only entitled to compensation at the rate of one dollar per day for actual services in attending to the ordinary affairs of the estate, and to his actual and necessary disbursements for the benefit of the estate, according to the provisions of the statute. R. S. 1849, chap. 131, sec. 8.
¶11Though very correct and convenient in practice, it seems not to be indispensable, that the account of the administrator should be made up in items of days and half days spent in performing services. If the time actually devoted to the affairs of the estate be clearly proved, that will be sufficient. Higbie vs. Westlake, 14 N. Y., 281.
¶12The allowance by the referee of $50 for the services of *9Balph C. Bowles, was, under the circumstances, reasonable and proper.
¶13The administratrix was properly' credited with the value of the property delivered over to Daniel Cameron, jr., as her successor. That part of the order was not appealed from, or at least not contested.
¶14The account of personal property which came to the hands of the administratrix is correct. She appears to have been charged with the full value as shown by the inventory and appraisement.
¶15As the items of services and disbursements for which the respondents are entitled to compensation according to the principles settled by this opinion, are not distinguished by the proofs from those with which the estate cannot be charged, it may become necessary for the court to take further proof, or to re-commit the case to a referee, in order that they may be ascertained. We see no objection to either course being pursued.
¶16The order of the circuit court is reversed, and the cause remanded for further proceedings in accordance with this opinion.