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

• Decision Date: 28 January 1908
• Citation: 135 Wis. 24,114 N.W. 849
• Parties: IN RE MCNAUGHTON'S WILL. FRAME v. PLUMB ET AL.
• Court: Wisconsin Supreme Court

135 Wis. 24

114 N.W. 849

IN RE MCNAUGHTON'S WILL.FRAME

v.PLUMB ET AL.

Supreme Court of Wisconsin.

Jan. 28, 1908.

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

In the matter of the probate of Elizabeth McNaughton's alleged will. From an order directing the payment of estate funds to D. S. Tullar, guardian ad litem for Ina Jano Plumb and another, contestants, Andrew J. Frame, proponent and executor, and the board of trustees of Carroll College, appeal, and contestants move to dismiss the appeal. Motion denied, and order reversed.

This is an appeal from an order of the circuit court for Waukesha county, dated May 11, 1907, directing the payment of the sum of $300 from the funds of the estate of the deceased to D. S. Tullar, as guardian ad litem for the contestants, who are minors, to procure the attendance of witnesses upon the trial of the contest of the will. From the order Andrew J. Frame, as executor and proponent, takes this appeal. The will was presented for probate in the county court for Waukesha county, and objections thereto were filed on behalf of the minor heirs. The will was admitted to probate, and A. J. Frame was appointed executor. Before he had taken possession of the estate and securities an appeal was perfected from the county court to the circuit court. Thereupon the county court appointed A. J. Frame as special administrator to hold the funds pending the litigation. D. S. Tullar, as guardian ad litem for the minor heirs, petitioned the circuit court for an order directing A. J. Frame, as special administrator, to pay the sum of $300 with which to procure the attendance of witnesses. The parties to the proceeding in the circuit court were Andrew J. Frame, proponent, and the board of trustees of Carroll College, residuary legatees under the will, and D. S. Tullar, as guardian ad litem for the two minor heirs. Frame was not mentioned in the title as either executor or special administrator. The petition by Mr. Tullar does not state that Frame had been appointed executor, but it does state that the moneys in said estate of the deceased are in the possession and under the control of Andrew J. Frame, who has been appointed and who is now acting as special administrator of said property. Upon this petition the circuit court issued an order returnable on the 11th day of May, 1907, requiring the above-named proponent and respondents to show cause before the court on the 11th day of May, 1907, why A. J. Frame, special administrator of the estate of said Elizabeth McNaughton, and the proponent of her alleged will, should not be ordered to pay the guardian ad litem the sum of $300, with which to procure the necessary witnesses on the part of the minor contestants for use upon the trial of said action. This order to show cause was served upon Frame & Blackstone, attorneys for said respondents. In response to the order to show cause, Blackstone filed an affidavit, stating that he was one of the attorneys for the proponent of the will, and what he had discovered with respect to the property of the minor contestants; and further stating that Frame, as proponent of the above-mentioned will, had no property of the deceased in his hands or under his control, and that Andrew J. Frame had been appointed, and was acting as special administrator of said estate under the direction and control of the county court. Upon the hearing of the order to show cause on the 11th day of May, 1907, the circuit court entered an order, directing said Andrew J. Frame, proponent of said will, and special administrator of the estate of Elizabeth McNaughton, deceased, to pay over to D. S. Tullar, guardian ad litem for the minor contestants, the sum of $300 of the moneys in his hands belonging to said estate for the use of said guardian ad litem in procuring the attendance of witnesses on behalf of said minor wards for the trial. From this order an appeal was taken to this court by A. J. Frame, as executor and proponent of said alleged will. A. J. Frame, as special administrator, was not a party to the appeal from the county court to the circuit court, and was not a party to the proceeding in which the order was made and did not appear therein. On June 13, 1907, Andrew J. Frame, as proponent and executor of said will, served notice of appeal to this court, and gave a bond to stay proceedings. The circuit court refused to stay said proceeding, and upon application made to this court the late chief justice entered an order for that purpose. The respondents have moved to dismiss the appeal upon two grounds: (1) The order appealed from is an intermediate order, and is not reviewable on appeal until after judgment. (2) Andrew J. Frame as proponent and executor of the alleged will is not a proper party appellant.Frame & Blackstone (Chas. Quarles, of counsel), for appellant.

D. S. Tullar (E. Merton, of counsel), for respondents.

BASHFORD, J. (after stating the facts as above).

The first question raised upon the motion to dismiss the appeal relates to the nature of the proceeding in which the order appealed from was entered. The contention upon the part of the respondents is that the order does not “determine the action and prevent a judgment from which an appeal might be taken,” under subdivision 1, § 3069, St. 1898; neither is it a “final order affecting a substantial right made in special proceedings,” under the second subdivision of that section. It is clear that the order does not come within the first subdivision of section 3069, and, if appealable, it must be...