Frame v. Plumb (In re McNaughton's Will)

• Decision Date: 15 December 1908
• Citation: 138 Wis. 179,118 N.W. 997
• Parties: IN RE MCNAUGHTON'S WILL. FRAME ET AL. v. PLUMB ET AL.
• Court: Wisconsin Supreme Court

138 Wis. 179

118 N.W. 997

IN RE MCNAUGHTON'S WILL.

FRAME ET AL.

v.PLUMB ET AL.

Supreme Court of Wisconsin.

Dec. 15, 1908.

Syllabus by the Judge.

Chapter 197, p. 845, Laws 1907, respecting the competency of officers of a corporation to testify, deals with the status when the person is offered as a witness.

One cannot acquire a vested right in a judicial remedy unless it is of the contract so that an invasion of the remedy necessarily impairs the property right.

The exception noted does not apply to a mere rule of evidence which leaves other rules, ample to establish the remedial right by competent witnesses.

It is competent for the Legislature to prescribe a rule of evidence as by chapter 197, p. 845, Laws 1907, applicable to transactions which happened prior to the enactment, but incompetency of a witness resulting may be avoided by removal of the condition upon which it is based before the person affected is offered as a witness.

On appeal from a judgment, unless there is a concurrence of a majority of the participating justices in support of at least one material ground of error, the judgment must be affirmed of necessity.

Generally speaking, it is improper for a court to adjudge or order paid out of trust funds the expenses of litigation of a defeated party respecting such fund except to the extent of his interest in the fund.

In general, representatives of owners of a trust fund have no authority to stipulate away the subject of the trust in payment of costs and expenses of litigation respecting the fund and any such stipulation should not be recognized by the court as a basis for an order or judgment.

Without plain legislative authority a trust fund should not, in any case, be depleted to pay the expenses of litigation in respect thereto of a person who has no interest therein.

The Legislature may make reasonable regulations for compensating out of a trust fund a representative, such as a guardian ad litem of an infant, required to be made a party to litigation, for his services and necessary expenditures, regardless of whether the infant has any interest in such fund.

In judicial proceedings to settle an estate, infant parties must be represented by guardians ad litem, regardless of any statute; moreover, the court rules require it.

A proceeding to settle the estate of a deceased person is in the nature of an action in rem, and all parties interested in order to be bound are required to be made parties.

In such proceedings adult persons are interested in having infant parties properly represented, as without that such adults could not safely possess themselves of the fund whether it belonged to them or not, hence the basis for depleting the fund to pay the expenses of such representatives regardless of whether the wards have any interest in the fund.

Compensation for services of a judicial assistant, such as a guardian ad litem, in the conservation of a trust fund, should be limited to the reasonable value of somewhat similar services in official life.

The rules before stated having been well established prior to the enactment of chapter 267, p. 909, Laws 1907, it is presumed the Legislature intended the measure of compensation to be the one established by judicial policy.

The law referred to leaves the court broad discretion as to whether to allow compensation or not and the amount gauged by the judicial rule.

The provision to the effect that the allowance must be fixed by the court in which the litigation is had is a limitation of authority.

A judgment against the ward for costs is not a liability of the guardian ad litem. Payment thereof by him is not, under ordinary circumstances, to be recognized as a necessary expenditure of his.

The words “payment can be directed by the court” limits the right of direction to property in custodia legis, leaving the balance, if any, allowed, collectible out of the property of the ward as his debt.

The allowance is not required to be taxed after the manner of taxing costs. It may be fixed in any way within judicial discretion.

In a proceeding to fix the allowance of a guardian ad litem, he does not represent the ward, whether in such cases the ward should be represented or left wholly to be protected by the court without assistance, not decided.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Application by Andrew J. Frame, executor of the will of Elizabeth McNaughton, deceased, and others for the probate of her will. From a judgment of the county court admitting the will to probate, contestants John Clyde Plumb and others, by their guardian ad litem, appealed to the circuit court, and from the judgment of the circuit court in favor of proponents, and allowing certain costs and disbursements out of the estate, both parties appeal. Affirmed on contestants' appeal, and modified and affirmed on proponents' appeal.

See, also, 114 N. W. 849.

Proceedings to establish the will were instituted in such county court October 2, 1906. Therein Ina Jane Plumb and John Clyde Plumb, minors and the heirs at law of the deceased, represented by their guardian ad litem D. S. Tullar, an attorney at law, contested the will upon the ground that the testatrix at the time of its execution was not of testamentary capacity and that it was procured by fraud and undue influence exercised by the representatives of the principal beneficiary. The proceedings in the county court were brief, resulting in the will being allowed. An appeal was seasonably taken to the circuit court for Waukesha county. The guardian ad litem, with the approval of the circuit employed Ernst Merton, a duly qualified attorney at law, to assist as counsel. Such court May 11, 1907, directed the special administrator, no executor having been yet appointed, to pay out of the estate $300 to enable the guardian ad litem to obtain the attendance of witnesses upon the trial. The proponent and person named as executor appealed to this court and prevailed upon the ground that there was no law authorizing the direction.

The trial occupied some 8 days, 38 witnesses being sworn. It resulted in favor of the proponent.

The will was executed June 13, 1904, at the residence of the testatrix, she signing the same with her own hand and it being witnessed by Ray Briggs and Margaret McNaughton, the latter being a distant relative and a member of the family of John D. McNaughton, in a part of whose residence the testatrix had made her home for many years. She, after making a few small bequests, among them $2,000, to John D. McNaughton, expressed as for fifteen years services and board and $100 additional for each year she might live after the date of the will, and $100 to each of the grandchildren, willed the residue of her estate, which proved to be somewhere around $35,000, to the trustees of Carroll College, a denominational school of the United Presbyterian Brethren, a church society with which the one she belonged to affiliated. She died about two years and two months after the will was made.

There was considerable conflicting evidenceas to the testamentary capacity of the testatrix at the date of the will. The opinion evidence, of which there was much on the part of the contestants, was from nonexperts, based upon their observation of the testatrix for a considerable length of time before the will was made. The general nature of contestant's opinion evidence is fairly indicated by that of Mrs. Vanderpool. On direct examination she said in substance this: “I lived on the place formerly belonging to the McNaughton family of which deceased was a member. She lived there many years ago. I knew her for some 35 years before she died and was accustomed to see her frequently in the later years of her life. I visited her in 1892 when she was sick. Her mind was then not just right. She seemed to see objects in a false aspect. After that I met and conversed with her. She would feel of my dress as if it was new to her and inquire if it was new when in fact she had seen it many times. She visited me at the old place and went about the yard apparently delighted to be there. She inquired about the condition of things existing when she resided on the farm, such as a flower bed and a fence around the garden, without seeming to appreciate how long a time had elapsed since she went away. She visited the place again in 1905 and was then unable to carry on a conversation. She was very forgetful and would reiterate some simple incident over and over again, unmindful of the fact that she had before related it. In my opinion she was not at the date of the will of sufficient mental capacity to comprehend perfectly the condition of her property, her relations with the persons worthy to be the objects of her bounty and the meaning of the paper she signed for a will. On cross-examination the witness said, in 1905, Elizabeth realized that she was forgetful and spoke of herself disparagingly on that account. In 1903, while she recollected the condition of things on the farm as they existed thirty-five years before, she would forget matters of very recent occurrence. She was never reputed to be much of a talker. I never talked with her about business.”

A part of the opposing evidence was by Dr. Kempster, an expert on mental diseases, who testified to this effect: The paralysis which afflicted the testatrix some over two years before she made the will was not such an affliction as to affect the mind after her physical recovery. Mere forgetfulness in old age, called senility, is loss of brain function; not inconsistent with comprehension of property interests and pecuniary obligations. Such mere senility is not the brain disease sometimes afflicting aged persons and called senile dementia. A person from mere senility might forget some things, such as the names of friends and children but would not be likely to forget to collect moneys due as principal of loans or interest thereon. Advanced senility would be indicated by failure...