Morey's Estate, In re

• Decision Date: 07 February 1956
• Citation: 272 Wis. 79,74 N.W.2d 823
• Parties: In re ESTATE of Fred MOREY, deceased. Maude ROSICK et al., Appellants, v. Verge MOREY, Respondent.
• Court: Wisconsin Supreme Court

Page 823

74 N.W.2d 823

272 Wis. 79

In re ESTATE of Fred MOREY, deceased.

Maude ROSICK et al., Appellants, v. Verge MOREY, Respondent.

Supreme Court of Wisconsin.

Feb. 7, 1956.

Edgar E. Becker, Appleton, Smith & Will, Green Bay, for appellants.

Benton, Bosser, Fulton, Menn & Nehs, Appleton, for respondent.

GEHL, Justice.

We do not reach the merits of this controversy if the motion of the respondent to dismiss the appeal is to be granted. He contends that the court's action may not be treated as a judgment because it is not a 'final determination of the rights of the parties', sec. 270.53(1), Stats., and that if it is to be treated as an order it does not 'in effect determine the action and prevent a judgment from which an appeal might be taken,' sec. 274.33(1), Stats.; also that the objectors are not parties aggrieved by the action of the court, and that, consequently, this court is without jurisdiction to entertain the appeal.

Sec. 253.05, Stats. provides that:

'The jurisdiction assumed by any county court in any case, so far as it depends on the place of residence of any person or the location of his estate, shall not be contested in any action or proceeding whatever except on an appeal from the county court in the original case or when the want of jurisdiction appears on the same record.'

The statute does not in express terms say that an appeal may be taken from a county court's action assuming jurisdiction where the question depends on the place of residence of a person, but the provision that its action shall not be contested 'except on an appeal from the county court in the original action' clearly indicates that the legislature intended that an attack such as is made in this case should be made directly and at the earliest opportunity, and impliedly recognizes that to that end an appeal from the resulting order may be taken. Although this court does not appear to have had occasion to declare in express terms that the statute does or does not authorize an appeal from an order such as is now before the court, it has recognized the right. In Will of Durkee, 1916, 164 Wis. 41, 159 N.W. 555, a petition for the probate of a will was presented to the county court of Kenosha county, it being alleged in the petition that the testator was a resident of that county. The will was admitted to probate and an executor was appointed who proceeded to administer the estate. In subsequent proceedings and after administration of the estate, it was sought to question the jurisdiction of the county court upon the ground of non-residence. This court approved the appointment of the executor and the proceedings taken by him upon the ground, among other things, that the county court's decision assuming jurisdiction, 'rendered after due notice to all parties [had] never been appealed from or reversed.' We are doubtful that an appeal in a case such as this is authorized by the provisions of any other statute and assume, therefore, that the court must have had sec. 253.05 in mind. To the same effect see In re Estate of Read, 1928, 195 Wis. 128, 217 N.W. 709.

By the provisions of sec. 253.03(1) the county courts are given exclusive jurisdiction to probate the wills of the residents of their respective counties. The right to insist that a petition for probate of a will be addressed to the proper court must rest somewhere. The record does not disclose that there is...