Flood v. Kerwin

• Decision Date: 01 April 1902
• Citation: 113 Wis. 673,89 N.W. 845
• Parties: FLOOD v. KERWIN ET AL.
• Court: Wisconsin Supreme Court

113 Wis. 673

89 N.W. 845

FLOOD

v.KERWIN ET AL.

Supreme Court of Wisconsin.

April 1, 1902.

Appeal from circuit court, Green county; B. F. Dunwiddie, Judge.

On petition of Mary Ann Kerwin and others, the will of Dennis Kerwin was admitted to probate; and from judgment of the circuit court, affirming the judgment of the county court, Rosanna Flood appeals. Affirmed.

It appears from the record, and is undisputed: That March 29, 1899, Dennis Kerwin died at his home, in the town of Exeter, in Green county,--being at the time over 80 years of age,--leaving a paper writing of which the following is a copy:

“State of Wisconsin, County of Green--ss.: I, Dennis Kerwin, of the town of Exeter, being of sound mind and memory, and mindful of the uncertainties of human life, do make, publish, and declare this my last will and testament, in manner following: To my daughters Lizzie and Mary Ann I give, grant, devise, bequeath 40 acres of land, to be divided between them, situated on Sec. 12, town 4, range 8, or (1,000) one thousand dollars. Dennis Kerwin. [Seal.]

Signed before me this 3rd day of March, A. D. 1890. M. F. Welch, Justice of the Peace.

I have made by will, but the above I certify to be my last will, which I now sign before witnesses. Dennis Kerwin. Witnesses: Mathew Kennedy, Michael Francis Welch. Dated this 17th day of March, 1899.”

That April 14, 1899, his daughter Miss Mary Ann Kerwin, of the same town, presented to the county court a petition setting forth such death, paper writing, and relationship, and that the deceased had left real estate in Green county of the value of $800, and personal estate of the value of $100, and naming eight heirs at law of the deceased, all of whom were of age, to wit. the petitioner and three others, residing in the town of Exeter, two in Dane county, and one (James Kerwin) in California, and another (Mrs. Rosanna Flood) residing at Omaha, Neb. The petition prayed that the paper writing mentioned be admitted to probate as the last will and testament of the deceased, and that his estate be settled and administered according to law, and was verified before a notary public by Mary Ann Kerwin, who signed the jurat, but failed otherwise to sign the petition. April 14, 1899, the county court made an order reciting such death and petition, and ordered that the matters therein be heard, and proofs of the last will and testament be taken, at the regular term of the court on the first Tuesday of June, 1899, when all concerned might appear and contest the probate of the will, and that notice of the time and place so appointed be given by publication thereof three weeks, successively, previous to the time so appointed, in the Weekly Times, a newspaper published in Green county. An affidavit of the printer of that paper, with such notice annexed, subscribed and sworn to before the county judge June 20, 1899, is to the effect that such notice had been published in that paper once in each week for three weeks, successively; “that the first insertion thereof was on the 30th day of April, 1899, and the last insertion thereof was on the 4th day of May, 1899.” The hearing of such matter, the court having been adjourned and continued by the court from June 5 to June 20, 1899, was then had, and judgment therein entered on that day reciting such petition, the order and notice, and proof of the same, and that no person had appeared to contest the will, and that the same had been duly proved by one of the subscribing witnesses; and it was thereupon ordered by the county court that such written instrument be, and the same was thereby, admitted to probate and allowed as and for the last will and testament of the deceased; and it was therein further ordered that letters of administration, with the will annexed, be granted to Mary Ann Kerwin, upon the giving and approval of a bond as required by law, in the sum of $500. Upon the verified petition of Rosanna Flood and other affidavits, and due notice and hearing, it was ordered by the circuit court, July 7, 1900, that the time for appealing from the order of the county court of June 20, 1899, admitting the paper writing to probate, be, and the same was thereby, extended until August 20, 1900. In pursuance of such order, Rosanna Flood duly appealed to the circuit court for Green county from the order and judgment of the county court so admitting the written instrument to probate, August 2, 1900, and gave the requisite security thereon. A trial having been had in the circuit court, and after hearing the proofs and arguments of counsel, it was ordered, adjudged, and determined, in effect, that the order and judgment admitting to probate the paper writing in question be, and the same was thereby, affirmed, without prejudice as to appellant's right to have the will construed,--that not having been passed upon on this appeal,--with a further adjudication as to costs and the remittitur. From that judgment Rosanna Flood brings this appeal.

J. J. Cunningham (C. E. Pierce, of counsel), for appellant.

J. L. Sherman and Collin W. Wright, for respondents.

CASSODAY, C. J. (after stating the facts).

It is claimed that the county court acquired no jurisdiction to admit the paper writing in question to probate, for want of the requisite notice to the heirs at law. The statute provides that notice of the time and place of proving the will “be given by personal service on all persons interested at least ten days before the time appointed or by publication in a newspaper as provided in section 4045, at least three weeks successively previous to said time; and no will shall be proved until notice shall be given as herein provided.” Sections 3787, 3805, Rev. St. 1898. The only notice here claimed to have been given is by such publication. The section therein referred to prescribes the manner of designating the newspaper in which such notice is to be published. Another section of the statute provides that “the affidavit of the printer or foreman of such printer of any newspaper in the state of the publication of any notice or advertisement required to be published in pursuance of any law of the state shall be received in all cases as presumptive evidence of such publication and of the facts stated therein.” Section 4173, Rev. St. 1898. There are other sections of the statutes requiring the affidavit of the printer, or his foreman or principal clerk, to prove publication of notice or summons in judicial proceedings, and in one of these he is required to specify “the date of the first and last publication.” Section 4174, and subdivision 4 of section 2642, Rev. St. 1898. Counsel for the respondent contends that the statement in the printer's affidavit to the effect that the first insertion of the notice in the paper was April 30, 1899, and the last May 4, 1899, should be rejected; but, as indicated, the affidavit is “presumptive evidence of such publication and of the facts stated therein.” We are not aware of any rule of law authorizing such rejection of specific facts merely because they are repugnant to a more general statement. While the affidavit of the printer was insufficient to give jurisdiction over the several heirs at law, yet it does not follow that the judgment should be reversed on that ground.

2. The case is quite similar, in the particular mentioned, to O'Dell v. Rogers, 44 Wis. 136. In that case it was held that “where the proper county court, after a hearing at the time and place duly appointed therefor, has admitted a will to probate, issued letters testamentary to the persons named in it as executors, etc., the proceedings, while invalid as to persons not duly notified who did not appear or assent to them, and have done no acts of ratification, are valid as to all who were duly notified, or who appeared or assented to them.” Mohr v. Porter, 51 Wis. 494, 8 N. W. 364;Melms v. Pfister, 59 Wis. 190, 191, 18 N. W. 255;Hemingway v. Reynolds, 98 Wis. 501, 74 N. W. 350;Kruczinski v. Neuendorf, 99 Wis. 264, 74 N. W. 974;Id., 99 Wis. 271, 74 N. W. 1119;Hubbard v. Railway Co., 104 Wis. 160, 165, 80 N. W. 454, 76 Am. St. Rep. 855. See the statute (section 2443, Rev. St. 1898). We must hold that the court had jurisdiction as to such parties as appeared in the case, including the appellant. But to avoid future litigation, the records of the county court should show jurisdiction of all the heirs at law before the administration of the estate.

3. Error is assigned because the circuit court failed to...