Bobo's Estate, In re

• Decision Date: 09 April 1957
• Citation: 82 N.W.2d 328,275 Wis. 452
• Parties: In re ESTATE of Stout BOBO, Deceased. Shelby Jean BOBO, a minor, by gdn., etc., Appellants, v. KENOSHA NATIONAL BANK, Adm'r, Respondent.
• Court: Wisconsin Supreme Court

Page 328

82 N.W.2d 328

275 Wis. 452

In re ESTATE of Stout BOBO, Deceased.

Shelby Jean BOBO, a minor, by gdn., etc., Appellants, v. KENOSHA NATIONAL BANK, Adm'r, Respondent.

Supreme Court of Wisconsin.

April 9, 1957.

Kellstedt & Young, Peoria, Ill., Cavanagh, Mittelstaed, Sheldon, Heide & Hartley, Kenosha, of counsel, for appellants.

Julius Grotsky, Kenosha, Vaudreuil & Vaudreuil, Kenosha, of counsel, for respondent.

FAIRCHILD, Justice.

The first question is whether the appeal from the order of October 6, 1955, must be dismissed. It was late, and although appellants applied for an extension of time, no extension was secured. This court has concluded that when a respondent does not move for dismissal of a late appeal but participates it it, sec. 269.51, Stats. vests jurisdiction here, notwithstanding the tardiness. In re Guardianship of Barnes, Wis., 82 N.W.2d 211. Respondent has participated in this appeal without first moving to dismiss.

Appellants argue that the county court should have vacated the proceeding for lack of jurisdiction. They assert that the petition for administration was fatally defective because not made by the widow or heir. The petition did, however, assert the fundamental jurisdictional facts of death and residence. Estate of Sargent, 62 Wis. 130, 135, 22 N.W. 131. Even if made by one who was not entitled to administration, the appointment would be revocable, but the proceeding would not be void. In re Estate of Bannelli, 274 Wis. 193, 80 N.W.2d 240; Steinberg v. Saltzman, 130 Wis. 419, 426, 110 N.W. 198. In any event, the petition here shows upon its face that it was made by the general guardians of the sole minor heir, and a minor may appear by general guardian of property. Sec. 324.29, Stats.

Appellants also challenge jurisdiction because no notice of the hearing on the petition was mailed to Shelby Jean or her mother. We do not deem that a petitioner is entitled to notice of a hearing upon her petition and Shelby Jean, by guardian, was the petitioner. Her mother was not an interested person.

Appellants also point out that guardian ad litem Kennedy did not appear at the hearing on April 19, 1955 and it does not affirmatively appear that he had notice. This lack of notice did not render the entire proceeding void, whatever effect it may have had upon the validity of the choice of administrators who were appointed. Those administrators have resigned and a successor has been appointed.

The county court correctly declined to vacate the proceeding, and the order of October 6 should be affirmed.

Appellants assert that the Bank must employ the attorneys designated by Mrs. Barton. Sec. 310.25, Stats. applies whenever a firm or corporation is named administrator. It permits the beneficiary who is nearest of kin to name the...