Cowie v. Strohmeyer (In re Rice's Will)

• Citation: 136 N.W. 956,150 Wis. 401
• Parties: COWIE ET AL. v. STROHMEYER ET AL. IN RE RICE'S WILL.
• Decision Date: 19 June 1912
• Court: United States State Supreme Court of Wisconsin

150 Wis. 401

136 N.W. 956

COWIE ET AL.

v.STROHMEYER ET AL.

IN RE RICE'S WILL.

Supreme Court of Wisconsin.

June 19, 1912.

Syllabus by the Judge.

In a will contest, only evidence bearing on legality of execution, testamentary capacity and whether the instrument purporting to be the particular person's will is such in fact, is legitimate.

A will contest cannot, properly, be turned into an action for construction, reformation or rescission, since the sole question is whether the paper purporting to be the will of the testator represents his legally declared final wishes as to the post mortem disposition of his estate.

On appeal from an order admitting a will to probate, the scope of judicial power is limited by the nature of the proceeding and the rights involved.

Parties interested in a testate estate are not competent to substitute their will for that of the testator so as to have the former carried out as if it were the scheme of the latter, and the court is powerless to give validity to any such scheme.

Notwithstanding fatal jurisdictional error within the scope of judicial power as to a particular subject-matter, the determination involved is conclusive between the parties and their privies respecting collateral attack.

In case of error by acting beyond judicial power, the result is a usurpation and not binding on any one.

Whether a judgment is jursdictionally bad for judicial error instead of for excess of power, turns on whether the court had jurisdiction of such subjects as the one deliberated upon.

Jurisdiction of the subject-matter has reference not only to nature of cause of action and relief sought, but judicial power of the court, referable to its organic act and other enabling written laws.

A cause of action or matter legitimately deliberated upon may, within the scope of the court's subjects of jurisdiction, be as broad as parties make it by pleadings, agreement, or evidence admitted without objection, but if the court goes beyond that its determination is coram non judice.

The abstract question in any particular case as to whether the property of a deceased person shall be distributed according to the wishes of the parties interested, or claiming to be so, instead of according to the written law or the will, is not of judicial cognizance.

The right to make a will is more sacred than that to make a contract; the former being beyond judicial power to disturb on equitable grounds, while the latter is not.

The right to make a will was recognized as one of first importance when the Constitution of Wisconsin was adopted and enjoyment thereof was guaranteed thereby.

Inherent in the right to make a will there is a constitutional right to have one which is validly executed carried out according to the intent of the testator.

Proceedings to obtain admission of a will to probate constitute an action in rem to establish status to which the public is a party, but without capacity to substitute any scheme of distribution for that of the testator.

Upon the person designated according to law to propose a will for probate performing his duty, judicial doors open for that particular purpose only of passing upon such proposition.

A will in possession of the proper county court for determination of its admissibility to probate, being a subject of an action in rem in such court, the thing is provable or disprovable according to law and as regards whether it is what it purports to be; if proponent and persons interested drop out the subject of the action remains to be dealt with, the court's sole function being to determine legality of execution and genuineness of testamentary declaration.

In general, all interested in trust property, if sui juris, may, by agreement, terminate the trust.

The rule last stated does not apply where any of the parties are under disability, or where the settlor made known, expressly or plainly, his intention that such power should not exist.

Excluding merely nominal parties, all who have appeared in an action and are interested on the same side, though not necessarily on the same side of the record, constitute one “party” as to making application for a change of venue, and must join to satisfy section 2625, Stats.

In an appeal from a final order settling an executor's account, all persons adversely interested may be brought in and the proceedings organized as an equitable action to settle the dominant controversy and all others germane thereto; the persons appearing being arranged as plaintiffs or defendants according to their actual attitude, as near as practicable.

In the situation last stated persons who have wrongfully possessed themselves of portions of the trust fund may be brought in and appropriate redress afforded.

In case of probate proceedings had in due course for the distinct purpose of determining the amount to be allowed to an executor as counsel fees and an order being minuted on the court journal intended to finally close the matter, the right of appeal commences to run from that date.

The rule last stated does not apply to a presentment involving jurisdictional error or extrajudicial elements indicating that the determination was not a final judicial determination of the judicial questions or a mere preliminary determination to be followed by a final order.

A county court order entered on due presentation with opportunity for parties to be heard, and ordinary advisory orders as regards business management of an estate, acted upon in good faith by an executor or administrator, protect such executor or administrator from personal liability.

Time for appealing from a final determination in county court, made in due course in the administration of an estate, dates from such determination whether embodied in a formal order or merely minuted upon the court journal.

A court memorandum, made in a hearing, on application for settlement of an executor's final account and preliminary to the final order, as to the amount to be allowed for attorney's fees and compensation of guardians ad litem, does not set time running to appeal from an allowance in harmony therewith by such final order.

A contract between attorneys and representatives of persons not sui juris and others,--beneficiaries of a trust fund held by an executor,--requiring such attorneys to guard the fund against undue depletion, yet stipulating for such attorneys, compensation equal to the amount the court shall allow adversary attorneys, making it for the pecuniary interest of the former to have such amount placed high and their duty to have it placed as low as practicable, is contrary to public policy, not binding on the beneficiaries, especially those who are not sui juris and does not create any legitimate basis for the court to act upon.

If an executor acts, reasonably, and in good faith in the disbursement of money pursuant to an order of the supervising court within its jurisdiction to make, he is protected thereby from personal liability.

An executor who pays out trust funds pursuant to the court's direction outside the scope of any subject-matter of such court's jurisdiction is personally responsible therefor.

Beneficiaries of a trust fund who by mistake as to their own rights or authority over such fund consent to improper disbursements therefrom to attorneys and guardian ad litem for past services, are not estopped from insisting upon a restoration of the fund, especially is that so as to beneficiaries who are not sui juris and represented by guardians having no right to stipulate away their rights.

If an executor, in good faith, disburses money of a trust fund pursuant to an order, bad for error, such order if seasonably and properly challenged, may be set aside or corrected so as to permit following the fund and recovering from the parties who received the money, but not so as to charge the executor personally.

Waiver does not require any consideration, lost or gained, to support it, but does require capacity on the part of the alleged waivor to give away his rights.

In the absence of bad faith, neither the doctrine of estoppel nor that of waiver applies to minors.

On a general appeal from the final judgment in the settlement of an estate in county court, the circuit court becomes possessed of the whole subject-matter involved in such order and may make all persons parties necessary to a final settlement or who should be present for their due protection, and the issuescannot be so narrowed by pleading or consent as to interfere with judicial competency as to the parties under disability, to decide any matter required by the evidence to be decided to fully redress the dominant wrong and all others subsidiary or germane thereto.

Legitimate counsel fees for the executor in an administration matter are, in general, limited to fair compensation for services reasonably required to be done and actually performed, commonly done by one attorney, or firm of attorneys.

Attorneys for beneficiaries under a will who intervene and assist in the administration of an estate are not entitled to be paid for their services out of the trust fund, and representatives of beneficiaries who are not sui juris have no authority to stipulate to the contrary.

The duties of a guardian ad litem in the settlement of an estate are, in general, merely advisory and supervisory; they have no authority to stipulate away any part of the trust fund, or to intervene and do the work of the executors or their attorneys at the expense of the estate.

When this court, upon a reversal, can best promote justice by giving such precise directions as to the proper judgment to be rendered as will speedily terminate the litigation, it will do so.

Where the whole history of an entire subject-matter, including a dominant feature and many others subsidiary or germane thereto, in the entirety affecting many persons who are parties, or may properly be made so, and the controversy, in general is opened by a reversal on appeal to this court,...