In re Hunt's Will

• Decision Date: 27 September 1904
• Citation: 100 N.W. 874,122 Wis. 460
• Parties: IN RE HUNT'S WILL. APPEAL OF NADEAU.
• Court: Wisconsin Supreme Court

122 Wis. 460

100 N.W. 874

IN RE HUNT'S WILL.

APPEAL OF NADEAU.

Supreme Court of Wisconsin.

Sept. 27, 1904.

Appeal from Circuit Court, Brown County; Saml. D. Hastings, Judge.

In the matter of the will of Susan Hunt, deceased. From a judgment affirming the probate of decedent's alleged will, Anna Nadeau appeals. Affirmed.

Appeal from judgment of the circuit court affirming the order of the county court of Brown county, made without contest, admitting to probate the will of Susan Hunt, deceased, dated February 27, 1900; the appeal, both to the circuit court and to this court, being taken by Anna Nadeau, not an heir at law of the decedent, but merely a legatee under an alleged prior will dated December 29, 1885. Such prior will was introduced in evidence with an offer of proof of the authenticity of the signature thereto. Objection was made that appellant could not show any interest to be aggrieved under a prior will until the same had been admitted to probate. The trial court overruled this objection, finding as a fact that the instrument of 1885 was signed by Susan Hunt, deceased, and purported to be her last will and testament as of its date. The trial court excluded testimony of the attending physician of Susan Hunt, deceased, as to her mental capacity, it being conceded that his opinion on that subject was based entirely upon information received by him either through his own observation or statements made by decedent to him while treating her as her physician, and for the purpose of treatment. The court found that the decedent, at the time of executing the 1900 will, was of sound, disposing mind and memory, and affirmed the probate of that will.J. C. Kerwin, for appellant.

Wigman, Martin & Martin and Sheridan & Evans, for respondent.

DODGE, J. (after stating the facts).

The respondent objects to the maintenance of this appeal, as he did to that in the circuit court, for the reason that appellant has not shown herself to be aggrieved by either the order or judgment appealed from, because she has shown no interest; apparently contending, first, that her interest as a legatee under a former will could only be established by the probate of that will in county court in the manner prescribed by section 3788, Rev. St. 1898 Wis.; secondly, that, even if the authenticity and validity of the will might have been proved as a fact upon the trial in the circuit court, no evidence was given. As to the second objection, it must be noted that the will itself was received in evidence, whereby the circuit court had opportunity to compare the decedent's signature upon that and upon the later will. We are therefore unable to say that there was absolutely no evidence upon which he might have predicated his finding that the 1885 document was signed by her, and that upon its face it purported to be her will. Further than this, however, the proof did not go. The question, therefore, presented is whether a person named as legatee under another will, which might be valid if that under consideration were rejected, can be recognized as a party aggrieved to appeal from the probate without first having procured the allowance of the will under which she claims by the county court in due probate proceedings. The question as to a will is, of course, differentiated from a question of interest arising under any other paper by the fact that the circuit court cannot originally adjudicate upon the validity of such prior will, that authority being exclusively vested in the county court; hence, if full and complete proof of the due execution of the prior will were offered, and the circuit court thereon should conclude that it was a valid will, still that conclusion would not establish it as such, for it must thereafter be presented to the county court, and there may fail of probate, and be a mere nullity. Section 2294, Rev. St. Wis. 1898. Upon the present showing, obviously the appellant in this case might defeat the will of 1900, and yet it transpire when she attempted to prove the will of 1885 that she was wholly without adverse interest, and the courts would have been put to labor and the distribution of the estate in accord with the wishes of every person interested therein might have been defeated. This consideration is weighty; but upon the other side it must be borne in mind that, if the will of 1885 is authentic and valid, and that of 1900 is not, the appellant might practically be deprived of all opportunity to present her rights upon appeal. The admission of the will of 1885 to probate involves, of course, the revocation of the probate of the will of 1900. Only in connection with such a direct attack upon the latter will could she be heard to offer proof of the former. Its invalidity at present is res adjudicata in the county court by virtue of the judgment already rendered therein. True, the county court has plenary power of an equitable character to re-examine and set aside its former decree, but also to refuse so to do; and if meanwhile that decree should be affirmed by the judgment of the circuit court, a most serious question is presented whether the power of the county court to set it aside would still exist, so that, unless it may be attacked on appeal, the present order and judgment may have finally adjudicated away appellant's rights. The policy of our statutes is that one whose interests may by reasonable probability be affected by judgment of the county court shall have the right to demand a review upon appeal in the circuit and supreme courts. That right is to be favored; and, while it is by statute confined to a “person aggrieved,” those words must be interpreted liberally to protect the opportunity. May it not be said that one who is interested under an instrument if it be valid is aggrieved by a judgment which, by necessary implication, is conclusive upon its invalidity, so as to preclude her from ever trying that question? The exact subject has perhaps never been decided in any jurisdiction where the power of originally adjudicating the validity of a will is so strictly limited to one court as in this state. But the reasons which justify recognition of such an appellant as an aggrieved party have received the sanction of some courts of high standing. Buckingham's Appeal, 57 Conn. 544, 18 Atl. 256;Morey v. Sohier, 63 N. H. 507, 3 Atl. 636, 56 Am. Rep. 538;McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336.

Upon due reflection we are convinced that in a predicament like this those reasons should control; although, if the objection to the later will were first offered in the county court, we should highly favor the practice which maintains in New York of refusing to listen to such a contestant until she had presented to that court for probate the will under which she claimed, to the end that the court might effectually decide upon its validity, and thus settle which document was to control the distribution of the estate before it. Walsh v. Ryan, 1 Bradf. Sur. 433, 434; In re Chittenden's Will, Tuck. 135. We conclude, therefore, that the objection to appellant's right to be heard upon the appeal in circuit court and in this court must be overruled. Of course, this conclusion as to sufficiency of interest merely to appeal from probate of the adverse will must not be understood to suggest that the earlier unprobated will could be relied on to establish any title or interest in property, or enable a legatee or devisee to maintain any action based on such title. That would be obnoxious to section 2294, Rev. St. 1898; Pitts v. Melser, 72 Ind. 469;Wood v. Mathews, 53 Ala. 1.

2. Exclusion of attending physician's testimony and opinion as to mental competency, based entirely upon information derived from decedent's statements or physician's observation while treating...