In re Britt's Will

• Decision Date: 03 May 1921
• Citation: 182 N.W. 738,174 Wis. 145
• Parties: IN RE BRITT'S WILL. APPEAL OF GILMAN.
• Court: Wisconsin Supreme Court

174 Wis. 145

182 N.W. 738

IN RE BRITT'S WILL.

APPEAL OF GILMAN.

Supreme Court of Wisconsin.

May 3, 1921.

Appeal from Columbia County Court; A. F. Kellogg, Judge.

Proceeding by Lida Gilman, executrix of C. C. Britt, deceased, for the allowance of her account, and a construction of the will. From an adverse judgment, she appeals. Affirmed.Hall & Baker and F. W. Hall, all of Madison, for appellant.

E. S. Baker, of Portage (H. E. Andrews, of Portage, of counsel), for respondent.

JONES, J.

In the county court of Columbia county the executrix of the will of C. C. Britt, deceased, applied for the allowance of her account as executrix, and for a construction of the will. Objections were filed by one of the legatees. From the judgment disallowing a number of credits claimed by the executrix in her account, and construing the will adversely to her claims, she brings this appeal.

[1] There is no bill of exceptions. Nor were any exceptions taken in accordance with the statute. Sections 2870, 3070, Stats. This being the fact, the only question necessarily before the court on this appeal is whether the judgment is sustained by the pleadings, in this case, the application for allowance of the account and objections, and the findings of fact by the trial court. Blossom v. Ferguson, 13 Wis. 75;Newton v. Williams, 94 Wis. 222, 68 N. W. 990;Hallam v. Stiles, 61 Wis. 270, 21 N. W. 42;Town of Saukville v. Town of Grafton, 68 Wis. 192, 31 N. W. 719;In re Meseberg's Estate; In re Steiner's Estate, 91 Wis. 399, 64 N. W. 1002;Statkawicz v. Laguna, 155 Wis. 304, 143 N. W. 677, 144 N. W. 1133;Foote v. Foote, 159 Wis. 179, 149 N. W. 738. Numerous other cases might bé cited to the same effect.

[2] It is true that in this case the trial court made no separate findings of fact and conclusions of law in accordance with section 2863. He, however, filed a decision signed “By the Court,” followed by the signature of the judge and indorsed “Opinion.” Judgment was rendered “pursuant to said opinion.” The opinion contains statements of facts concerning the issues involved. We find no requests by appellant for findings of fact, nor any exception to the failure to find the facts separately or to the method pursued by the trial court. Appellant's counsel in their assignments of error and elsewhere in their brief refer to the court as “finding” facts thus stated in the opinion. In view of these circumstances we do not feel that appellant has been misled by the failure of the trial court to make formal findings of fact, and we hold that statements of fact in the opinion may be considered on this appeal as equivalent to findings of fact, and entitled to the weight accorded to such findings. Duncan v. Duncan, 111 Wis. 75, 86 N. W. 562. And see Jones v. Foster, 67 Wis. 296, 310, 30 N. W. 697;Wrigglesworth v. Wrigglesworth; 45 Wis. 255.

[3] This holding is not to be construed as in any way approving the failure of trial courts to make formal findings of fact and conclusions of law as provided by the statute. The statute should be followed, and its observance is just as important in those county courts from which appeal now lies directly to this court under the provisions of section 4031 as in the circuit and other courts. Under the former practice, when all appeals from the county court ran directly to the circuit court where the trial was de novo, the making of findings may have been comparatively unimportant. The new statute imposes new responsibilities on the county courts, and makes it important for attorneys who desire to appeal to see that the record complies with the statutes. These observations are not to be construed as discouraging, but rather as encouraging, the filing of opinions accompanying the decisions of trial judges if they are not overcrowded in their work. We often find these opinions very able and very useful.

[4] Among the facts found by the trial court are the following: Deceased died July 31, 1897, and his will was shortly thereafter admitted to probate. Portions thereof material to this appeal are as follows:

“Second. I give and bequeath to my niece, Miss Lida Gilman, all my personal property of whatever kind or nature, to use and dispose of as she may deem best.

Third. I give and bequeath the use of my homestead * * * to my sister-in-law, Mrs. Emily C. Gilman, during her lifetime, and to my said niece, Lida Gilman, during her lifetime, or until she shall marry and be otherwise provided for. * * * Should my said niece survive her mother, and not wish to occupy said premises, I direct that she rent the same and receive the proceeds thereof until the time of her death or marriage as aforesaid. Or, if she so prefers, the said premises may be sold, and the avails thereof be equally divided between herself and my two sisters, Mrs. Elmira Cone, of Rome, N. Y., widow, and Mrs. Elvira Law, of Toledo, Ohio. But if my said niece should not so prefer, then after her death or marriage said premises shall be sold and the avails thereof divided equally between my said two sisters. In case of the death of my said sister, Elmira Cone, before my estate shall be settled, her share of this bequest shall be divided share and share alike between her two daughters, Elvira Cone and Mrs. Emma Allen, and in case of the death of my said sister, Mrs. Elvira Law, before my estate is settled, her share of this bequest shall be divided share and share alike between her three daughters, Mary, Emma and Cora Law.

Fourth. In case I should not in my lifetime dispose of my farm known as outlots Nos. 46, 47, 48 and 49, * * * I direct that the same be sold and the proceeds thereof applied to the payment of the mortgage of $1,400.00 on my homestead, and the remainder, if any there be, I give and bequeath to my said widowed sister, Elmira Cone, if living at the time, and, if not so living, to her daughter Elvira Cone.

In making the foregoing bequests I have had well in mind the names and condition of all my nephews and nieces and think the same will be most beneficial as I have made them.

Fifth. I hereby authorize and empower my executrix, or whoever may be appointed to succeed her in case of her death, to sell all my real estate as hereinbefore provided, and to convey the same by proper deeds as fully as I could do if living.”

The will appointed the niece, Lida Gilman, executrix. She accepted the trust, and still acts. Judgment on claims was entered in April,...