Moon v. Cullen (In re Bailey's Estate)

• Decision Date: 10 November 1931
• Citation: 205 Wis. 648,238 N.W. 845
• Parties: IN RE BAILEY'S ESTATE. MOON ET AL. v. CULLEN.
• Court: Wisconsin Supreme Court

205 Wis. 648

238 N.W. 845

IN RE BAILEY'S ESTATE.

MOON ET AL.

v.CULLEN.

Supreme Court of Wisconsin.

Nov. 10, 1931.

Appeal from a judgment of the County Court of Grant County; W. J. Brennan, Judge. Affirmed.

Cora B. Moon, as administratrix of the estate of Lawrence W. Bailey, deceased, Emma V. Bailey and May Bailey Jones, heirs at law of said deceased, appeal from the final judgment of distribution made and entered in said court on the 9th day of December, 1931.Kopp & Brunckhorst, of Platteville, for appellants.

O. B. Porter, of Madison, for respondent.

OWEN, J.

Lawrence W. Bailey, a citizen of Grant county, died intestate on the 13th day of March, 1926. Upon her application, letters of administration issued to Cora B. Moon, a sister of the deceased, out of the county court of Grant county on the 13th day of May, 1926. On the 26th day of October, 1926, a final judgment settling the account of the administratrix and assigning the estate was entered. The estate was assigned to the brothers and sisters, and the children of a deceased brother, of the deceased.

On the 18th day of December, 1929, James P. Cullen, general guardian of Ruth M. Bailey, alias Ruth M. Clark, filed a petition in the county court of Grant county, setting forth that his ward, Ruth M. Bailey, alias Ruth M. Clark, was the minor daughter and sole heir at law of said Lawrence W. Bailey, deceased; that she was not advised nor informed of, nor made a party to, the administration proceedings; that she was in no way represented, and that there was no guardian ad litem appointed to represent her, in such proceedings; that Cora B. Moon, through fraud, procured herself to be appointed administratrix and obtained her proportion of the estate through false and fraudulent representations. The prayer was that the final judgment of distribution be vacated and set aside, and that the court take proof upon the allegation that Ruth, the said ward, was the sole heir of the deceased. Pursuant to the filing of such petition, further proceedings were had, the final judgment of distribution was vacated and set aside, an administrator de bonis non was appointed, and on the 9th day of December, 1930, a final judgment was entered in the action assigning all of the estate to Ruth Muriel Bailey, alias Ruth Muriel Clark, as the sole heir of the deceased. From that order or judgment Cora B. Moon, as administratrix of the estate of Lawrence W. Bailey, deceased, appealed to this court on the 2d day of January, 1931. Ruth M. Bailey appealed on the 6th day of April, 1931. Emma V. Bailey and May Bailey Jones, sisters of the deceased, to whom portions of the estate were assigned by the first order of distribution, appealed on the 22d day of September, 1931.

[1] Upon the appeal of Cora B. Moon, as administratrix, as well as that of Emma V. Bailey and May Bailey Jones, a review of the determination of the court that Ruth Muriel Bailey, alias Ruth Muriel Clark, was the sole heir at law of the deceased, is sought. A motion to dismiss the appeal of Cora B. Moon, administratrix, was denied by this court on May 12, 1931. A similar motion was made, argued, and taken under advisement by the court on September 15th, to be decided after argument of the principal issues in the case. Whether the appeal of Cora B. Moon, as administratrix, was or is efficient to secure a review of the final order of distribution, is a question that has never been decided by this court. As the administrator does not represent any particular heir, it is generally held that he is not aggrieved if some heirs receive less than they are entitled to by the order of distribution and, consequently, the administrator has no right to appeal. Bates v. Ryberg, 40 Cal. 463;In re Heydenfeldt, 117 Cal. 551, 553, 49 P. 713;Vincent's Estate, 84 Vt. 89, 78 A. 714;Merrick v. Kennedy, 46 Neb. 264, 64 N. W. 989; Appeal of Stilphen, 100 Me. 146, 60 A. 888, 4 Ann. Cas. 158;Estate of Craig, 101 Neb. 439, 163 N. W. 765;Dewar's Estate, 10 Mont. 422, 25 P. 1025;Estate of Williams, 122 Cal. 76, 54 P. 386;Bryant v. Thompson, 128 N. Y. 426, 28 N. E. 522, 13 L. R. A. 745. This is an open question in this court, and a decision thereof does not seem necessary at this time, for the reason that Cora B. Moon was not administratrix of the estate at the time she gave notice of appeal. She had been supplanted by an administrator de bonis non, and her appeal in her pretended capacity as administratrix of the estate must be dismissed. She could have appealed as a sister of the deceased and as one of the original distributees of the estate, but she did not appeal in that capacity, and it was frankly stated upon the argument that she appealed as administratrix to avoid the necessity of giving a bond which would have been required had she appealed in her individual capacity.

[2][3][4] An objection is made by the respondent, Ruth Muriel Bailey, in her brief upon the main argument, to the appeal of Emma V. Bailey and May Bailey Jones. Efficient objection might have been made to that appeal if made in time. Appeals from orders of the county court must be taken within sixty days. Section 324.04, Stats. Their appeal was not taken within sixty days. However, section 324.05, Stats., authorizes the county judge, upon cause shown, to allow an appeal thereafter and within one year. These appellants made an application to the county court of Grant county for permission to take the appeal. An order was made by the county court dated the 2d day of September, 1931, allowing these appellants to appeal from the order of September 9, 1930. At that time all of the papers and records in the case had been transmitted to this court pursuant to the appeal of Cora B. Moon. This transferred jurisdiction of the case from the county court of Grant county to this court. Seyfert v. Seyfert, 201 Wis. 223, 226, 229 N. W. 636;State ex rel. Zabel v. Municipal Court, 179 Wis. 195, 190 N. W. 121, 191 N. W. 565. The county court thereafter was without jurisdiction and was without power or authority to enter the order. Proper procedure required the appellants to move in this court for a return of the record to enable the court below to consider their application for leave to appeal. It will be noticed that this was an appeal from the final judgment, which brought up the entire record in the case. This is said lest it be thought that an appeal from any order of the county court in a probate proceeding transfers entire jurisdiction of the proceeding to this court. An appeal from an order of the county court transfers to this court only such portions of the proceeding as are germane to the order appealed from.

[5][6] However, there is another objection to the efficiency of this appeal. The order of the county court permitted Emma V. Bailey and May Bailey Jones to appeal from the order of September 9, 1930. They actually appealed from the order of December 9, 1930. Their appeal, therefore, is without the permission of the county court, and for this, and the other reason above stated, would have been dismissed had a motion for that purpose been made in due time. However, it is provided by section 269.51 in effect, that all objections to the regularity or sufficiency of the appeal are waived unless such objections shall be made by motion to dismiss such appeal before taking or participating in the taking of any other proceedings in the appellate court. As such motion was not made, the irregularities mentioned in the appeal of Emma V. Bailey and May Bailey Jones must be deemed waived, and we have jurisdiction to consider the merits of the case. In passing, we may say that the appeal of Ruth Muriel Bailey must be dismissed, for the reason that it was not taken in time, and no order of the county court was secured permitting her to appeal.

The question first confronting us is whether the determination of the county court that Ruth Muriel Bailey, alias Ruth Muriel Clark, was the sole heir at law of the deceased, is supported by the law and the evidence. Ruth was, concededly, the illegitimate child of one Pansy Clark, who at the time of the hearing was married to Arlie Dull. The court found that Lawrence W. Bailey, deceased, was the father of Ruth. This finding is sustained by the overwhelming evidence. But the fact that she was his illegitimate offspring does not necessarily make her his heir. Section 237.06, Stats., specifies the contingencies under which an illegitimate child shall become the heir of the father. One of such contingencies is when the father “shall, in writing signed in the presence of a competent witness, have acknowledged himself to be the father of such child.” While there are other contingencies specified in that section, proof of that mentioned is the one relied upon to constitute Ruth the heir of the deceased. As this was the law at the time Ruth was born as well as now, we are not concerned with the question of whether the law at present, or the law at the time of her birth, governs the situation. The only question is whether the proof justifies the finding, implied at least by the county judge, that the deceased “in writing signed in the presence of a competent witness, acknowledged himself to be the father of such child.”

[7][8] There is no doubt that deceased was arrested upon a bastardy charge and taken before a justice of the peace at Prairie du Chien, where a settlement was consummated between him and the mother of the child. There were present at such settlement the deceased, the mother, the father of the mother, the district attorney, and the justice of the peace. From the evidence, it cannot be well doubted that at that time a document was drawn up and signed by the deceased. That document could not be produced at the time of the hearing. It had been lost or destroyed. Neither could the docket of the justice of the peace for the year during which that proceeding was had be found and produced at this hearing, although diligent search had been...