Krause v. Krause (In re Krause's Will)

• Decision Date: 10 March 1942
• Citation: 2 N.W.2d 732,240 Wis. 68
• Parties: In re KRAUSE'S WILL. KRAUSE et al. v. KRAUSE et al.
• Court: Wisconsin Supreme Court

240 Wis. 68

2 N.W.2d 732

In re KRAUSE'S WILL.KRAUSE et al.

v.KRAUSE et al.

Supreme Court of Wisconsin.

March 10, 1942.

Appeal from orders of the County Court of Marathon County; Frank P. Regner, Judge.

Dismissed.

In proceedings in the county court for the administration of the estate of Fred W. Krause, deceased, who died testate on September 5, 1940, his will was duly admitted to probate and two of his sons, Elmer and Herman, were appointed executors. The testator was survived by his widow, Irma Krause, and several children and grandchildren. His estate was appraised at about $240,000, of which $57,000 was the value of real estate, and a department store property and business was appraised at $29,000. The will directed that the widow be paid $100 a month during the process of administration and gave to her a life estate in $10,000, but she elected to take by law rather than under the will. Specific bequests were made by the testator to his children and grandchildren. He bequeathed and devised to his sons, Herman, Walter and Elmer, the department store property, including the stock of merchandise, and accounts and bills receivable connected with the business, which the will provided shall be kept together as a unit. On August 16, 1941, the executors filed a petition for an order authorizing them to have more than one year in which to settle the estate; and also an order authorizing them to continue to carry on the business of the department store. Irma Krause, the widow, and Brayton E. Smith, as guardian ad litem for minor children, objected to the petition and to extending the time to settle the estate, and to authorizing the executors to carry on the business; and in connection therewith the objectors prayed for an order requiring a detailed accounting by executors before the court acts on their petition. In response to that prayer the court, on September 11, 1941, entered an order requiring the executors to make and file an account of their receipts and disbursements in relation to the estate as of October 1, 1941; and also an order authorizing the executors to continue to carry on the business until October 8, 1942, and an order extending the time to settle the estate. On November 10, 1941, Smith, as guardian ad litem, and Irma Krause served upon the executors, the county judge and registrar of probate notices of appeal from the order requiring the executors to make and file an account, and also from the order authorizing them to continue to carry on the business. There was no service of the notices of appeal on Walter Krause or any other legatee. The return on the appeal was made to this court on December 11, 1941; and the executors and Lester Bazlen, a legatee, moved on several grounds to dismiss the appeal.

See, also, 2 N.W.2d 733.

Alfred W. Gerhard and Brayton E. Smith, both of Wausau, for appellants.

Genrich & Genrich, of Wausau (Herbert L. Terwilliger and James A. Fitzpatrick, both of Wausau, of counsel), for respondents.

FRITZ, Justice.

The motions to dismiss the appeal must be granted on the ground that the orders authorizing the executors to continue to carry on the business to October, 1942, and directing an accounting by the executors of their receipts and disbursements as of October 1, 1941, are merely directory orders made in the course of probate proceedings. As such they are not within the classifications designated as appealable orders by the provisions in sec. 274.33, Stats. That statute...