MacKin v. Madden (In re Madden's Will)

• Decision Date: 26 September 1899
• Citation: 104 Wis. 61,80 N.W. 100
• Parties: IN RE MADDEN'S WILL. MACKIN v. MADDEN.
• Court: Wisconsin Supreme Court

104 Wis. 61

80 N.W. 100

IN RE MADDEN'S WILL.

MACKIN

v.MADDEN.

Supreme Court of Wisconsin.

Sept. 26, 1899.

Syllabus by the Judge.

1. A notice of appeal to the supreme court, delivered to the clerk of the circuit court for the purpose of complying with the appeal statute on that subject, and having such notice filed and certified to this court as part of the record on appeal, which is so filed and returned, satisfies the statutory requisites of such an appeal as regards the serving of notice on such clerk and the return thereof to this court, and the clerk's filing on such notice sufficiently proves the facts.

2. Expenses of administration may be made a charge on the homestead by will, subject to widow's rights to be asserted at her election.

3. If a testator, by will, make debts and legacies a charge on his homestead, requiring its conversion into money for their payment, there being no other property out of which to pay the same or the expenses of administration, the payment of such expenses, out of the fund derived from such sale, will be deemed, by implication, to have been contemplated by the testator and made a charge upon such fund.

Appeal from circuit court, Fond du Lac county; N. S. Gilson, Judge.

In the matter of the estate of Patrick Madden, deceased, Patrick Mackin, administrator, appeals from an order on petition of Phillip Madden for sale of realty. Reversed.

Patrick Madden, deceased, willed his property as follows: To his wife for life, remainder over, one-half of the real estate to Phillip Madden without incumbrance, $100 to his daughter, Elizabeth Coleman, $5 to Andrew Madden, and the rest and residue, after the payment of all of his debts, to Mary Ann Brown. Substantially all the property possessed by the testator at the time of his death was a homestead incumbered by a mortgage. The will was duly admitted to probate and the widow elected to take under it. Claims were allowed against the estate to the amount of $42.50, but there was no property with which to pay them or the expenses of administration, unless the property left to Mary Ann Brown was liable therefor. The probate court was petitioned for a license to sell the interest of Mary Ann Brown to obtain money to pay the claims allowed against the estate and the expenses of administration, which was granted as to such claims, but denied as to such expenses. The administrator appealed from such determination to the circuit court, where it was affirmed, and from the judgment of affirmance he appealed to this court.

Bardeen, J., dissenting.

Duffy & McCrory, for appellant.

E. Blewett, for respondent.

MARSHALL, J. (after stating the facts).

A motion was made by the respondent for a dismissal of the appeal because there was no proof on file of service on the clerk of the circuit court of the notice of appeal. A proper notice of appeal was found in the record certified to this court, with the usual filing thereon of the clerk of the lower court. It was urged that the statute requires a service of the appeal notice on the clerk of the circuit court where the judgment appealed from was entered, by delivering to such clerk, and leaving with him, a true copy thereof, and proof thereof, together with the original notice, to be duly certified to this court. To support such contention respondent's counsel cited Yates v. Shepardson, 37 Wis. 315, where a notice of appeal was not delivered to or filed with the clerk of the trial court; also Steam-Heating Co. v. Sloteman, 67 Wis. 118, 30 N. W. 241, where the notice was not delivered to the clerk for the purpose of complying with the appeal statute, but was filed with him pursuant to a nunc pro tunc order of the trial court; and Association v. Childs, 86 Wis. 292, 56 N. W. 870, where the notice of appeal was neither directed to nor delivered to the clerk of the trial court. It will be observed that neither of such cases is similar in its facts to the one before us. Here a notice of appeal duly directed to the clerk of the trial court was delivered to him for the purpose of complying with the appeal statute, and was filed and returned by him to this court as a part of the record. Section 3049, Rev. St., provides that an appeal must be taken by serving a notice in writing on the adverse party and on the clerk of the circuit court in which the judgment or order appealed from is entered; and section 3050, Id., provides that the clerk shall in all cases transmit to the supreme court the notice of appeal. It is considered that if a notice of appeal, made and directed as required by the statute, is delivered to the clerk of the trial court for the purpose of making the requisite service on him and having such notice filed and returned as part of the record on appeal, and it is so filed and returned, the calls of the statute in regard thereto are amply satisfied, and the notice, with the clerk's indorsement thereon, shows prima facie the jurisdictional requisite as to such service.

It would require an exceedingly strict construction of the statute to reach the conclusion that there must be a notice of appeal served by copy on the attorney for the adverse party and on the clerk of the trial court, and that such notice, with proof of such service, must be filed with such clerk and by him certified to this court in order to confer jurisdiction upon it. The delivery to the proper clerk of a notice of appeal for the purpose of complying with the appeal statute, constitutes a literal compliance therewith, and the clerk's filing thereon sufficiently proves the service. The return of...