February 10, 1942 —
March 10, 1942.
APPEAL from orders of the county court of Marathon county: FRANK P. REGNER, Judge. Dismissed.
For the appellants there was a brief by Brayton E. Smith and Alfred W. Gerhard, both of Wausau, and oral argument by Mr. Gerhard. Herbert L. Terwilliger and Fred W. Genrich, Jr., both of Wausau, for the respondents.
In proceedings in the county court for the administration of the estate of Fred W. Krause, deceased, who died testate on September 5, 1940, his will was duly admitted to probate and two of his sons, Elmer and Herman, were appointed executors. The testator was survived by his widow, Irma Krause, and several children and grandchildren. His estate was appraised at about $240,000, of which $57,000 was the value of real estate, and a department-store property and business was appraised at $29,000. The will directed that the widow be paid $100 a month during the process of administration and gave to her a life estate in $10,000, but she elected to take by law rather than under the will. Specific bequests were made by the testator to his children and grandchildren. He bequeathed and devised to his sons, Herman, Walter, and Elmer, the department-store property, including the stock of merchandise, and accounts and bills receivable connected with the business, which the will provided shall be kept together as a unit. On August 16, 1941, the executors filed a petition for an order authorizing them to have more than one year in which to settle the estate; and also an order authorizing them to continue to carry on the business of the department store. Irma Krause, the widow, and Brayton E. Smith, as guardian ad litem for minor children, objected to the petition and to extending the time to settle the estate, and to authorizing the executors to carry on the business; and in connection therewith the objectors prayed for an order requiring a detailed accounting by executors before the court acts on their petition. In response to that prayer the court, on September 11, 1941, entered an order requiring the executors to make and file an account of their receipts and disbursements in relation to the estate as of October 1, 1941; and also an order authorizing the executors to continue to carry on the business until October 8, 1942, and an order extending the time to, settle the estate. On November 10, 1941, Smith, as guardian ad litem, and Irma Krause served upon the executors, the county judge, and registrar of probate notices of appeal from the order requiring the executors to make and file an account, and also from the order authorizing them to continue to carry on the business. There was no service of the notices of appeal on Walter Krause or any other legatee. The return on the appeal was made to this court on December 11, 1941; and the executors and Lester Bazlen, a legatee, moved on several grounds to dismiss the appeal.
The motions to dismiss the appeal must be granted on the ground that the orders authorizing the executors to continue to carry on the business to October, 1942, and directing an accounting by the executors of their receipts and disbursements as of October 1, 1941, are merely directory orders made in the course of probate proceedings. As such they are not within the classifications designated as appealable orders by the provisions in sec. 274.33, Stats. That statute is applicable alike to all appeals from orders, whether they are orders made by a county court or a circuit court. Estate of Beyer, 185 Wis. 23, 26, 200 N.W. 772. In this case it was held that although sec. 324.01 (2), Stats., provides that an appeal may be taken to the supreme court from "any order or judgment" of the county court, the legislature did not thereby "intend to give the right of appeal from orders which were not appealable under the provisions of sec. 3069 [now sec. 274.33]." The court said, —
"It is hardly conceivable that the legislature should intend to grant the right to appeal from all orders, many of which are merely directory, made in the course of probate proceedings, and withhold the right to appeal from orders made in the circuit court, often of much greater dignity. This position is further strengthened by reference to the provisions of sec. 4036, that an appeal from the county court, when it is filed and notice thereof given, stays all further proceedings. The legislature could not have intended to stay proceedings on appeals from merely directory orders."
These conclusions were approved and applied in Will of Pattison, 190 Wis. 289, 297, 207 N.W. 292; Estate of Benesch, 206 Wis. 582, 584, 240 N.W. 127; Will of Hughes, 187 Wis. 14, 203 N.W. 746; Estate of Harter, 187 Wis. 90, 203 N.W. 720.
Moreover, the appeal from the order requiring an accounting by the executors in relation to the estate as of October 1, 1941, must be dismissed because this order was granted pursuant to the prayer in appellants' petition "that the court require an accounting from the executors of their doings in this estate." Appellants, having prayed for an accounting, cannot be heard on an appeal taken by them from an order entered in response to their prayer. As this court has said, —
" . . . the appeal cannot be sustained, for certainly the plaintiffs appeal cannot attack by appeal an order made at their request. It is immaterial that such request was in the alternative." Treat v. Hiles, 75 Wis. 265, 275, 44 N.W. 1088; Larson v. Hanson, 207 Wis. 485, 242 N.W. 184; Steneman v. Breyfogle, 211 Wis. 5, 247 N.W. 337; Estate of Bryngelson, 237 Wis. 7, 296 N.W. 63.
By the Court. — Appeal dismissed as to both orders.