Miller v. Lavelle, 130 Wis. 500. so many feet in a given direction from the starting point must control, at least in absence of other physical facts inconsistent with such result." We think this case is not within. any of the exceptions mentioned in the other cases cited by appellant. Where there is a natural monument or what is equivalent to a natural monument there cannot be said to be "absolutely no direct evidence as to the place of physical location on the ground of the line or point in question." In Madison v. Mayers, 97 Wis. 399, at page 411 (73 N. W. 43, 46), the following is quoted with approval: "In ascertaining the true location of the streets, lots, and blocks in a city, according to the plat and survey thereof, regard is to be had (1) to the natural monuments referred to therein, and (2) to the artificial monuments placed by the surveyor to mark lines or boundaries, before resorting to the courses and distances marked on the plat or survey." Thus courses and distances in this classification come third in order of certainty, but it is not intended to lay down a rule of law that courses and distances shall, in all cases, overcome every other species of evidence with reference to location except natural or artificial monuments. In Galesville v. Parker, 107 Wis. 363, 83 N. W. 646, it is said: "The rules by which the lines of such plats are to be ascertained are well settled. In the absence of natural boundaries or monuments, and of monuments or stakes set in the course of the original survey, the lines of ancient fences and longcontinued occupation of adjacent lots and blocks in the same plat, if evidently intended to mark the true lines of such lots and blocks, have greater probative force than mere measurements of courses and distances." The fact that there exists on the ground south of the survey in question an abrupt descent from the plateau upon which the lots are situate, and that the contour of that descent on the upper surface would cut the lot and street lines and close the survey substantially as indicated on the plat, although at a slightly greater distance to the south as stated, and the fact Klee v. Stephenson, 130 Wis. 505. that the plat contains a picture or representation of such descent by the short parallels before mentioned, and that the line at the beginning of such descent or top of the ascent corresponding with the edge of the plateau is made to appear to close the survey of the plat on the south, and that without such plateau edge there are no data from which such irregular or meander closing line could be located between the points of contact of the street and lot lines with the southern boundary, all give the point indicated in the finding of the court the probative value of a natural monument, mentioned not in the writing, for we have not the field-notes of the survey, but by pictorial representation on the plat. Having arrived at this conclusion, it follows that the judgment must be affirmed. By the Court.-The judgment of the circuit court is affirmed. KLEE, Appellant, vs. STEPHENSON, Respondent. January 9-January 29, 1907. Guaranty: Statute of frauds: Promise to answer for debt of another: Memorandum: Consideration. [1. Whether, under the facts stated in the opinion, notice of acceptance by plaintiff of a memorandum of guaranty was necessary in order to charge the defendant with liability as guarantor, not determined.] 2. A written instrument: "R. S. agrees to assume one half of W. S.'s liability under the above guaranty," fails to express any consid eration, and hence is void under subd. 2, sec. 2307, Stats. 1898. It is at best merely a promise to answer for the debt of another person. APPEAL from a judgment of the County: CHARLES SMITH, Judge. superior court of Douglas Affirmed. For the appellant the cause was submitted on the brief of G. H. Winsor and Archibald McKay, and for the respondent on that of R. I. Tipton. Klee v. Stephenson, 130 Wis. 505. WINSLOW, J. This is an action upon a written guaranty. The case was tried by the court and the facts were not in dispute. One Baillie, a merchant tailor at Superior, desired to purchase goods on credit of the plaintiff, a merchant in New York. In order to obtain credit Baillie, on the 17th day of July, 1902, procured one Sims to sign a written guaranty by the terms of which Sims, in consideration of the sum of one dollar paid by the plaintiff, guaranteed to the plaintiff payment of all indebtedness which might become due from Baillie to the plaintiff not exceeding $300 for the period of one year. At the foot of this guaranty the defendant signed an agreement in the following words: "Rufus Stephenson agrees to assume one half of Wm. Sims' liability under the above guaranty. This is to be in force for one year only from above date, July 17th, 1902." The two agreements were delivered to the plaintiff, whothereupon sold goods to Baillie during the following year upon credit, upon which a balance of more than $300 remained unpaid at the time of the commencement of this action. The defendant had no notice or knowledge that his guaranty had been accepted by the plaintiff or that any goods had been sold to Baillie relying thereon until about the time of the commencement of this action. Judgment was rendered for the defendant on the ground that his agreement was simply an offer of guaranty which had never been accepted, and the plaintiff appeals. We express no opinion upon the somewhat vexed question whether notice of acceptance by the plaintiff was necessary to charge the defendant with liability as a guarantor. In our judgment it is certain that the written instrument fails to express any consideration, and hence is void under subd. 2, sec. 2307, Stats. 1898, because it is at best merely a promise to answer for the debt of another person. sarily from the decisions of this court. Wis. 674; Huston v. Field, 6 Wis. 407; This follows neces- Palmer v. O'Rourke, 130 Wis. 507. Wis. 384, 5 N. W. 794; Comm. Nat. Bank v. Smith, 107 Wis. 574, 83 N. W. 766; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1. By the Court.-Judgment affirmed. PALMER, Administrator, Respondent, vs. O'ROURKE, Appellant. January 9-January 29, 1907. Executors and administrators: Title to personal estate: Right to assets: Possession by heir: Trover and conversion: Pleading: Complaint: Demurrer: Limitation of actions: Death of party entitled to sue: Suspension pending appointment of administrator. 1. Upon the death of any person possessed of personal estate the legal title thereto and right to possession thereof vests in his personal representative and can only reach the heirs, ultimately entitled thereto, by due course of administration. 2. In the absence of some sufficient equity in favor of an heir who has possessed himself of personalty of a decedent, the mere fact of his having an equitable interest therein as such heir does not deprive the personal representative, duly appointed to administer the estate of which such personalty forms the whole or a part, of an absolute right to recover the value thereof from such heir in case he has converted the same to his own use. 3. In an action to recover money claimed to have been converted, the complaint alleged that plaintiff's intestate instructed defendant to carry a sum of the intestate's money to a bank and deposit it in the bank to her account; that the defendant depos ited it in the names of "M. O. or H. J. O.," the decedent and defendant, respectively; that defendant was an heir of decedent; and that the defendant thereafter, without authority and by falsely representing to the contrary, withdrew such deposit, part in the lifetime of decedent and part after her death. Held, that the complaint stated a cause of action although it showed that defendant was entitled, as heir, to receive one half the residue of the estate of decedent left after the payment of all claims allowed against the estate and the expenses of administration. Palmer v. O'Rourke, 130 Wis. 507. 4. In such case the reasonable inference from such allegation was that the money was deposited either in the name of decedent, or in the name of defendant as the money of the decedent. 5. So construed such complaint is held not to show any wrongful conversion by defendant at the time the deposit was made. 6. In an action against an heir for conversion of money deposited in a bank, the complaint alleged that defendant wrongfully withdrew from the bank and converted to his own use part of the money within one year before decedent's death, and that the balance of the deposit was so withdrawn and converted six days after her death, both conversions occurring more than seven years and less than eight years before an administrator was appointed. Held: (1) As to the first withdrawal and conversion the right of the administrator to recover was barred by sec. 4222, Stats. 1898. (2) The limitation of sec. 4222, Stats. 1898, was not extended under sec. 4234 by the death of decedent, since the death did not occur during the last of the six years after the right of action accrued. (3) As to the withdrawal and conversion after the death of decedent (there being no person in existence competent to bring an action on account thereof until plaintiff was appointed administrator nearly eight years after decedent's death), the cause of action was not barred, the situation being governed by sec. 4251 (providing that there being no person in existence who is authorized to bring an action thereon at the time a cause of action accrues shall not extend the time within which, according to the provisions of ch. 177, Stats. 1898, an action can be commenced upon such cause of action to more than double the period otherwise prescribed by law). APPEAL from an order of the circuit court for Rock county: B. F. DUNWIDDIE, Circuit Judge. Affirmed. Action to recover money alleged to have been converted by defendant to his own use. The complaint was to this effect: The plaintiff is the administrator of the estate of Mary O'Rourke and brings this action as such. October 1, 1897, she died intestate in said. county of Rock, where plaintiff, December 16, 1904, was duly appointed administrator as aforesaid. October 9, 1894, there was awarded to her $1,923.30 by the county court of said county as her share of the estate of her son, of which defend |