Oakley v. Davidson

• Decision Date: 25 April 1899
• Citation: 103 Wis. 98,79 N.W. 27
• Parties: OAKLEY ET AL. v. DAVIDSON ET AL.
• Court: Wisconsin Supreme Court

103 Wis. 98

79 N.W. 27

OAKLEY ET AL.

v.DAVIDSON ET AL.

Supreme Court of Wisconsin.

April 25, 1899.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

In the matter of the estate of John Crichton, deceased, Annie Oakley and others appeal from an order allowing Margaret Davidson and others to appeal from an order refusing probate of the will.Affirmed.B. F. Dunwiddie and A. A. Jackson, for appellants.

Fethers, Jeffris, Fifield & Mouat, for respondents.

CASSODAY, C. J.

This is an appeal from an order of the circuit court entered June 25, 1898, allowing Margaret Davidson, Margaret K. Davidson, and Lewis Green to appeal from the judgment of the county court made December 21, 1897, refusing to admit to probate an alleged will of John Crichton, bearing date December 28, 1886, and who died September 9, 1897, in and by which he bequeathed to his son Thomas, to his daughter Annie Oakley, and to his daughter Margaret Moriarity one dollar each, and gave, bequeathed, and devised the rest and residue of his estate, both real and personal, to his sisterMargaret Davidson, to his niece Margaret K. Davidson, and to his nephew Lewis Green, to be divided between them share and share alike; and he therein declared that he had deliberately, and after full consideration, limited his wife and children, for the reasons that his wife had left him without cause, as the record in her action for divorce would show.73 Wis. 59, 40 N. W. 638.Such order was based upon the petition of Margaret Davidson, Margaret K. Davidson, and Lewis Green, mentioned, and verified May 27, 1898, stating, in effect, the facts mentioned, and also that, immediately after the refusal to so admit the will to probate, the petitioners directed their attorneys to take an appeal therefrom; that such attorneys prepared papers for taking the same, which were duly signed; that the petitioners did not know that the appeal had to be taken within 60 days until February 19, 1898, when they retained their present attorneys to prosecute the appeal, and told them that the appeal had been taken; that upon investigation their present attorneys found that notice of appeal and undertaking had been filed January 8, 1898, and an order entered requiring notice thereof to be served within 10 days; that their former attorneys supposed the same had been served, but as a matter of fact were mistaken; that a new notice and undertaking were prepared, but the attorneys were unable to file the same in time; that by reason of the doubt about its being effectual such application was made; that the petition contained the usual affidavits of merits, and that the attorneys for the appellants herein were still the attorneys for the adverse parties; that, in addition to such verified petition, said order was based upon affidavits of Margaret Davidson and Margaret K. Davidson, filed in the case, and the testimony of Charles L. Fifield, taken in open court, and upon all the papers made and filed therein, and the affidavits of Annie Oakley, W. A. Jackson, and John Anderson, and the testimony of John W. Sale, county judge, and George S. Sale, taken in open court; that it appeared from the affidavits and testimony in opposition to such application that during January, February, and the early part of March, 1898, the parties made efforts to settle the controversy without further litigation; that, as a result of such negotiations, a written instrument was drawn up, and signed by Margaret Davidson and Margaret K. Davidson, as parties of the first part, and Annie Oakley, Margaret Moriarity, and Thomas Crichton, as parties of the second part, March 15, 1898, whereby the parties of the second part agreed to pay to the parties of the first part $500, to be in full of all claim and demand in and to the estate under and by virtue of the will, but that there is no claim that anything was in fact paid; that Green was not a party to such agreement to settle, and never signed such paper; that six days after it was so signed by the other parties, Margaret Davidson and Margaret K. Davidson gave notice to the parties of the second part thereto that they thereby rescinded and declared such agreement void, and of no effect, and that such rescission was made on account of fraud, false representations, and duress in...