Hill's Estate, In re

• Decision Date: 06 March 1956
• Citation: 272 Wis. 197,75 N.W.2d 582
• Parties: In re ESTATE of John A. HILL, Deceased. Perry J. STEARNS, Perry J. Stearns, as one Trustee under Will of John A. Hill, Deceased, Appellant, v. Clark M. ROBERTSON, Trustee et al., Respondents.
• Court: Wisconsin Supreme Court

Page 582

75 N.W.2d 582

272 Wis. 197

In re ESTATE of John A. HILL, Deceased.

Perry J. STEARNS, Perry J. Stearns, as one Trustee under

Will of John A. Hill, Deceased, Appellant, v. Clark M. ROBERTSON, Trustee et al., Respondents.

Supreme Court of Wisconsin.

March 6, 1956.

Previous appeals involving matters of this estate are reported in 261 Wis. 290, 52 N.W.2d 867, and 264 Wis. 410, 59 N.W.2d 437, 60 N.W.2d 254. Another appeal from an order of the court was taken by Trustee Perry J. Stearns on January 29, 1954 which, on motion of respondents, was dismissed December 3, 1954.

Upon petition of Emmet L. Richardson and Clark M. Robertson, two of the three trustees in the estate of John A. Hill, deceased, pending in the county court of Milwaukee county, an order was signed on April 22, 1955 by Hon. G. L. Pattison as Acting County Judge of Milwaukee county, returnable April 29, 1955 at 2 p. m., requiring Perry J. Stearns, the other trustee of the estate, to show cause why he should not be removed as a trustee.

The petition upon which the order to show cause was based, read in part as follows:

'Come Now Emmet L. Richardson and Clark M. Robertson, being a majority of the trustees under the will of John A. Hill, deceased, and hereby petition the court as follows:

'1. That a life estate for deceased's widow was created under the will of John A. Hill, deceased, which said life estate terminated on the death of the widow the 17th day of April, 1948. That the will aforesaid provides that the assets in trust thereunder shall thereupon be transferred to a charitable trustee which has for a long time been qualified as such remainderman.

'2. That it is a matter of record that the trust created for the life beneficiary has not been terminated but has been allowed to continue * * *.

'3. That to petitioners' information and belief said Perry J. Stearns has in his possession all the books and records of said trust, and has managed the said trust estate to the exclusion of his cotrustees, except as to formal matters. That on the 13th day of July, 1954, a citation issued by this court directed to Perry J. Stearns was served on Perry J. Stearns providing as follows:

"It Is Hereby Ordered, that said Perry J. Stearns, as trustee, do within ten days from the service of this order upon him, prepare and submit to his co-trustee an account of the administration of said trust for the years 1952 and 1953, for submission to this court as required by law.'

'4. That by order of this court the 18th day of January, 1954, it was ordered:

"It Is Further Ordered that said Perry J. Stearns as one of the trustees under the will of John A. Hill, deceased, shall pay the above mentioned sum (fees and disbursements) to Quarles, Spence & Quarles on or before February 1, 1954.

"It Is Further Ordered that thereafter but not later than February 1, 1954, said Perry J. Stearns shall turn over to the Robert Hill Foundation the balance of any assets in his possession belonging to said John A. Hill estate.

"It Is Further Ordered that in the event of the failure on the part of said Perry J. Stearns to comply with this order in the manner and at the time set forth he shall be removed as a trustee under the will of John A. Hill, deceased.'

'5. That an appeal was taken from such order aforesaid to the supreme court by Perry J. Stearns the 29th day of January, 1954. That however no bill of exceptions was ever settled and the record was not certified to the supreme court until after motion was made for dismissal of such appeal on such grounds by respondent therein the 30th day of October, 1954. That such appeal was thereupon dismissed by the supreme court the 3rd day of December, 1954 and affirmed upon appellant's motion for rehearing thereon.

'6. That Perry J. Stearns has failed and refused to comply with the citation of this court aforesaid and with the order of the court dated the 18th day of January, 1954, and failed to perform his duties as a trustee herein which makes its impossible to properly close this trusteeship and transfer the assets thereof to the remainderman, Robert Hill Foundation.

'7. That this petition is made for the purpose of obtaining an order to show cause why Perry J. Stearns should not be removed as a trustee under the will of John A. Hill, deceased, and such other further and proper order required thereby in the premises.'

The orders of the court of January 18, 1954 and July 13, 1954 referred to in the above petition, had been rendered by Hon. G. L. Pattison, who is the duly elected and qualified County Judge of Buffalo county. Judge Pattison had presided in matters pertaining to this trust estate since 1951, at which time the County Judge of Milwaukee county, Hon. Roy R. Stauff, had disqualified himself from further hearings in the matter, and had, by order, called upon Judge Pattison to assume jurisdiction in matters pending. It appears that on January 14, 1954 Trustee Stearns had filed an Affidavit of Prejudice against Judge Pattison which, by order, the court declined to recognize. It was from this order that an appeal was taken on January 29, 1954. The appeal was dismissed by this court on December 3, 1954.

On April 26, 1955 County Judge Roy L. Stauff signed an order, which was duly filed, calling in Hon. J. K. Callahan, County Judge of Marquette county, to hear and determine all issues which may come before the court in the trust estate.

On April 29, 1955 at 2 p. m., which was the time fixed by Judge Pattison's order signed April 22, 1955, requiring Mr. Stearns to show cause as to why he should not be removed as a trustee, Judge Callahan was present in court prepared to hear the matter. Judge Callahan had been engaged in the hearing of matters in other causes in the County Court of Milwaukee county during the morning of that day. Mr. Stearns appeared at the appointed time, as did slso Attorney Edward Borgelt, who represented the petitioners. Mr. Stearns handed a copy of a 'Special Appearance' and an 'Affidavit of Prejudice' to counsel, and presented the original thereof to Judge Callahan, stating that he was filing the same with the court. The court ordered that it be shown of record that the 'Affidavit of Prejudice' was directed to Judge Pattison, and that the 'Special Appearance' which had been entered indicated that Judge Pattison was without jurisdiction to hear the matter. Judge Callahan refused to recognize the affidavit and the special appearance, and directed the parties to proceed with the hearing. Mr. Stearns moved to amend the affidavit of prejudice and the special appearance so as to show the name of Judge Callahan in place of that of Judge Pattison, claiming that the appearance of Judge Callahan had come to him as a complete surprise. After the affidavit of prejudice and the special appearance had been presented to Judge Callahan, the court stated:

'Let the record show that Hon. G. L. Pattison, Acting County Judge of Milwaukee county did on the 22nd of April, 1955 issue under his signature, seal of the court, an order to show cause returnable on this 29th day of April, 1955 at 2:00 o'clock, as the record shows, to Perry J. Stearns as to why he should not be discharged as trustee under the estate of John A. Hill.

'There has been an affidavit of prejudice filed on this 29th day of April, 1955 against Judge Pattison when actually Judge J. K. Callahan, Judge at Marquette county has been called in to hear said order to show cause matter; that in addition thereto a special appearance has been entered by Perry J. Stearns claiming that there is no jurisdiction for Judge Pattison to appear to hear this matter and due to the fact that Judge Pattison is not hearing it Judge J. K. Callahan has been called in to hear said matter.

'The affidavit is denied and the special appearance is denied and the court will proceed with said matter forthwith.'

Thereafter Mr. Stearns addressed the court, and stated:

'If the court please, I hear and now move to amend these two papers just served and filed for the reason that the appearance of your Honor has come as a complete surprise to me, all of the moving papers having heretofore shown that Judge Pattison made the order and as he has appeared in the other matters I had reason to believe that he would appear here and I therefore demand and request that my papers be amended to insert your name in place of Judge Pattison for the same reasons apply in your case as in Judge Pattison's case.'

Mr. Borgelt's observation as expressed to the court was as follows:

'Mr. Stearns has appeared before Judge Pattison on this matter in at least possibly two or three occasions. Some of the hearings were long and drawn out. He certainly knows Judge Pattison by this time. He has heretofore filed an affidavit of prejudice which was denied. He now has filed an affidavit against Judge Pattison which under the statutes he has used up his option if he had one to file one in the first instance so that he cannot now file one against your Honor. It would be a second affidavit of prejudice. I am relying on the fact that on one occasion heretofore he filed an affidavit or attempted to file an affidavit against Judge Pattison and he did now here in these proceedings today file one. Now, what he seeks to do is file a second affidavit of prejudice against another judge who has been assigned to hear this matter.'

Thereafter the court said:

'* * * Based upon the record and that upon a fact that when an affidavit of prejudice is to be filed it should be the opposite attorney should be notified five days ahead or the court can assess the costs, but the court is not going to assess any costs; by virtue of the record I refuse it at this time and we will proceed.'

Mr. Stearns then made the following motion:

'If the court please, I now move to dismiss this motion for the reason that the court has not jurisdiction for the same reasons set forth in my special appearance.'

The court denied the motion.

There was further...