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Estate of White

Supreme Court of Wisconsin
Mar 7, 1950
41 N.W.2d 776 (Wis. 1950)

Opinion

February 7, 1950 —

March 7, 1950.

APPEAL from a judgment of the county court of Monroe county: OTTO W. SPRECHER, Judge. Reversed.

For the appellants there were briefs by Wm. M. Johnston of Cedar Rapids, Iowa, and Masters, Hansen Krembs of Sparta, and oral argument by Mr. Johnston.

For the respondent L. E. Austin there was a brief by Donovan, Gleiss, Goodman, Breitenfield Gleiss of Sparta, and oral argument by L. J. Goodman.


Grandchildren of Jabez White, the testator, appeal from a judgment entered in the county court of Monroe county July 12, 1949. Jabez White died testate in 1910, survived by his widow and seven children. His will was admitted to probate and the widow was appointed executrix. Paragraph "Second" of the will devises and bequeaths a life estate to the testator's wife. Then follow the paragraphs material to this controversy, to wit:

" Third. After the death or marriage of my said wife, all the incomes from my said estate, shall be given to my unmarried daughters to be used for their support, during the time they, or either of them, shall remain unmarried, and all provisions hereof to cease upon their marriage, except as hereinafter provided, and should any of my daughters during this period become widowed and without sufficient means of support, they shall share in said incomes with my unmarried daughters equally.

" Fourth. All the surplus incomes not then needed for the support of dependent widowed daughters, during the life of any surviving daughter, but for a period not exceeding ten years from the death or marriage of the last surviving unmarried daughter, shall be accumulated, and invested, and become a part of my estate.

" Fifth. At the end of the said period of ten years last mentioned, I give, devise, and bequeath all the rest, residue, and remainder of my estate to my then surviving children."

There was a leisurely administration of the estate and it had not been completed when the executrix died in 1926, survived by the seven children who had survived the testator. One of them, an unmarried daughter, was appointed administrator de bonis non. She soon applied for a settlement of the account and judgment assigning the residue of the estate. Notice as prescribed by statute and by order of the court was given to all parties interested in the estate and on September 24, 1929, the county court approved the account and entered a final judgment which contained a finding that Jabez White was survived by his wife and seven children and, after assigning the residue of the personal estate to the widow, "ordered and adjudged that the real estate aforesaid be and the same hereby is assigned and transferred as follows:"

"To Alfred E. White, Charles W. White, Frank A. White, Emily J. Rawson, Lillian T. Rawson, Matilda J. Farnham, and Ada F. White, the then surviving children of the deceased, according to the terms of said will: To each an undivided one seventh thereof; all subject, however, to the dower and homestead rights of said Emma White, widow of said deceased."

No one has ever appealed from this judgment but the estate was not closed and in 1948 the administrator de bonis non died. She was the last surviving daughter of the testator. By her death Alfred White, the present respondent, became his only surviving child. He filed a petition praying for the appointing of an administrator de bonis non to close the estate. Mr. L. J. Goodman notarized Mr. White's signature on the petition and his firm, Messrs. Donovan, Gleiss, Goodman, Breitenfield Gleiss, appeared as attorneys on the published notice of hearing. On this application the present administrator and respondent, L. E. Austin, was appointed. He proceeded to complete the administration promptly, filed his account and made application for its allowance, for a construction of the will, and for judgment assigning the residue. On July 12, 1949, the county court construed the will. It concluded that respondent Alfred White was the only child to fulfil the various conditions precedent and it entered a judgment which incorporated that construction, assigned all the real estate to him and declared void the judgment entered September 24, 1929.

From this judgment, in so far as it construes the third, fourth, and fifth paragraphs of the will, certain of Jabez White's grandchildren appeal. They claim that they inherited from their deceased parents the respective undivided one sevenths of the real estate assigned such parents by the 1929 judgment, which interests the 1949 judgment has purported to wipe out in favor of their uncle, Alfred.

Other material facts will be stated in the opinion.


The first problems have to do with our jurisdiction and with the rights of parties to be heard. The respondent administrator de bonis non questions the jurisdiction of this court to hear the appeal and the appellants say that such administrator is not an interested party and has no right to question or assert anything.

Jurisdiction is always of concern to us and if it is suspect it does not matter who calls a supposed defect to our attention. We will examine the record in such detail as may be necessary for us to come to a conclusion. The administrator points out that unless an extension of time to appeal is allowed by the county court under sec. 324.05, Stats., which did not occur here, sec. 324.04 (1) limits the time within which an appeal may be taken from an order or judgment of a county court to sixty days from its entry, and sec. 274.11 directs that service of notice of the appeal be made within such time on each adverse party who has appeared in the proceeding. He says that respondent White is such a party and was not served until September 14, 1949, four days after the sixty days had elapsed: ergo, the appeal was not perfected within the time limited and must be dismissed.

Sec. 269.51 (1), Stats., provides that a respondent waives all objections to the regularity and sufficiency of an appeal or to the jurisdiction of the court if he participates in any proceedings in the appellate court before moving to dismiss the appeal. The record shows that respondent, White, by his attorneys, Donovan, Gleiss, Goodman, Breitenfield Gleiss, admitted service of appellants' brief and appendix on December 7, 1949, and on the same day respondent Austin, by the same attorneys, admitted like service. No motion was made to dismiss the appeal until December 22, 1949, when respondent administrator so moved. The record does not show that the briefs were ever returned or that the service was repudiated or that White has done anything herein after counsel admitted service of the brief as his attorney. Such acceptance and retention of briefs was held to be a participation in proceedings in the appellate court in Maas v. W. R. Arthur Co. (1942), 239 Wis. 581, 2 N.W.2d 238. There the respondent also took part in settling the bill of exceptions, but that is a proceeding in the trial court ( Kitchenmaster v. Mutual Automobile Ins. Co. (1946), 248 Wis. 335, 338, 21 N.W.2d 727), and as such has no influence on the question. The participation in the appellate court before moving to dismiss was the same in the Maas Case as it is at present and we follow the rule that we applied then, that objection to jurisdiction was waived and thereby sec. 269.51 (1) conferred upon the supreme court jurisdiction of the appeal. See also Estate of Sweeney (1945), 247 Wis. 376, 19 N.W.2d 849.

Having held that appellants are properly before us, we reach their contention that the administrator, who is the only respondent to file a brief or make oral argument, is not a party who can oppose their appeal. They refer us to Estate of Bailey (1931), 205 Wis. 648, 238 N.W. 845, which questions, though it does not decide, the right of an administrator who is not aggrieved by a judgment to appeal from it. It is still unnecessary to decide whether sec. 324.01 (2), Stats. gives such an administrator the right of appeal because the administrator here is not appealing. We would not have summarily reversed the learned county court if no one had appeared in support of its judgment but would have felt bound to examine the record and apply the law as well as we could. It is, of course, unusual that respondent White, whose interests require the judgment to be affirmed, has not supported it, while respondent Austin who, as administrator, is theoretically indifferent to the result, presses upon us the arguments we would have expected to hear from White. Nevertheless, for our own satisfaction if no more, our decision must be tested against the points he has made and we have carefully considered what he has to say. We have often done as much for amici curiae.

Appellants submit that in 1949 the county court cannot alter or set aside or replace the final judgment it entered in 1929. We have concluded that this is true since only error and no lack of jurisdiction, fraud, or imposition on the court is charged against it. We so held in Will of Brandstedter (1929), 198 Wis. 457, 224 N.W. 735, whose facts were much the same as they are in the present matter. Brandstedter's will provided a life estate to the widow with remainder to the children. The final judgment, in 1897, assigned the widow the fee. In 1927 the widow died and a child who had been sui juris since 1901 petitioned the county court to amend the final judgment. His petition was denied and he appealed. We held that the county court had power to construe the will in the final judgment; and that the construction given the will in the final judgment was binding upon the parties interested in the estate until reversed or set aside in some proceeding which constituted a direct attack upon it. The application to amend the final judgment could not serve the purpose of an appeal and the time for appeal had long since expired. Accordingly, we affirmed the order denying the application.

In the present case, long after the expiration of the time in which an appeal might be taken and, as far as the record shows, solely to correct error in that part of the earlier final judgment which assigns the estate, the county court construes the will and enters a new judgment in which it adjudges the first one to be "of no force and effect" and "none of the persons to whom said judgment pretended to assign a portion of the property in this estate acquired any interest whatsoever in and to said property" thereby. Thereupon it assigned the estate to the respondent Alfred White. Respondent administrator, and the learned county court in the decision filed with its judgment, tell us that in Will of Inbusch (1927), 193 Wis. 10, 212 N.W. 634, we permitted a construction of a will ten years after the entry of final judgment. A careful reading of that case will show this to be a misapprehension of what was done. The Inbusch final judgment repeated verbatim, in the assignment of property, the language of the bequests in the will. The later proceeding was a construction of the judgment rather than of the will. Quoting from page 13 of the Inbusch opinion, it was "a construction of the language of the will which is incorporated into the final judgment." The Inbusch Case would be in point only if in 1929 this county court had assigned the residue of the White estate by repeating in the assignment clauses of the final judgment paragraphs Third, Fourth, and Fifth of Jabez White's will and the administrator was now asking the court what they meant. The county court did not do that in 1929. It determined the meaning of those paragraphs to be a devise to the testator's then surviving children, subject to dower and homestead rights, as we have said. That was a construction of the will; it was made a part of the final judgment and as we have often held, such judgment, however erroneous, must stand unless reversed, modified, or set aside in accordance with the statutes governing appeals and retrials. Will of Brandstedter, supra; Cline v. Whitaker (1911), 144 Wis. 439, 441, 129 N.W. 400; Estate of Penney (1937), 225 Wis. 455, 464, 274 N.W. 247; Estate of Bosse (1944), 246 Wis. 252, 256, 16 N.W.2d 832. The rights given by such statutes to reverse, modify, or set aside the 1929 judgment have long expired. An attempt by the county court to do such things in 1949 is beyond its (and our) jurisdiction and is void.

The appellants and the respondent administrator have submitted argument concerning the respective merits of the two constructions of the will but, since we have determined that the one of September 24, 1929, must stand, we are not justified in giving consideration to that subject, learned as we believe their discussion to be.

By the Court. — Judgment entered July 12, 1949, reversed and cause remanded with directions to reinstate the judgment entered September 24, 1929.


Summaries of

Estate of White

Supreme Court of Wisconsin
Mar 7, 1950
41 N.W.2d 776 (Wis. 1950)
Case details for

Estate of White

Case Details

Full title:ESTATE OF WHITE: WHITE and others, Appellants, vs. AUSTIN, Administrator…

Court:Supreme Court of Wisconsin

Date published: Mar 7, 1950

Citations

41 N.W.2d 776 (Wis. 1950)
41 N.W.2d 776

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