Parsons v. Balson

• Decision Date: 09 October 1906
• Citation: 109 N.W. 136,129 Wis. 311
• Parties: PARSONS v. BALSON.
• Court: Wisconsin Supreme Court

129 Wis. 311

109 N.W. 136

PARSONS

v.BALSON.

Supreme Court of Wisconsin.

Oct. 9, 1906.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by Lafayette R. Parsons against John Balson, as executor of Cynthia A. Parsons, to set aside probate of a will. From a judgment of the circuit court, reversing an order of the county court, defendant appeals. Affirmed.

On the 15th day of June, 1876, one Henry D. Parsons made a will giving all his property to his wife, Cynthia A. Parsons. The will was kept in a tin box to which no persons had access except the testator and his wife. The box and its contents were on the 5th day of April, 1887, destroyed by a fire which burned the residence of said Parsons. After the destruction of the will, and on the 10th day of November, 1887, Henry D. Parsons and his wife adopted the respondent, Lafayette R. Parsons. Henry D. Parsons died on the 22d day of July, 1890, without having executed any other will. On petition of the widow, Cynthia A. Parsons, made in August, 1890, this destroyed will was, on the 5th day of September, 1890, admitted to probate as a lost or destroyed will under section 3791, Rev. St. 1898. At the time the alleged will was probated respondent was a minor of the age of 14 years. The estate of said Henry D. Parsons was administered by Cynthia A. Parsons, and on November 10, 1891, her final account allowed by the court, and the real estate left by the deceased at the time of his death assigned to her. Lafayette R. Parsons, the adopted son, became of age in July, 1897, and on September 9, 1897, filed a petition in the county court asking that the order of September 5, 1890, admitting the alleged will to probate, be vacated and set aside, a suitable person appointed administrator of the estate, and for general relief. Cynthia A. Parsons, the widow, filed an answer to this petition, and shortly thereafter commenced proceedings in the same court to set aside the proceedings adopting Lafayette R. Parsons, which proceedings were litigated through the courts and determined finally on appeal to this court. Parsons v. Parsons, 101 Wis. 76, 77 N. W. 147, 70 Am. St. Rep. 894. Cynthia A. Parsons was afterwards, and in October, 1900, put under guardianship as incompetent, and died on the 7th day of September, 1901. About two months prior to her death she made a will devising her property to strangers, making no provision for her only heir, Lafayette R. Parsons. This will was contested by respondent on the ground of incompetency, and admitted to probate by the county court, and judgment affirmed on appeal to the circuit court. On December 12, 1899, the county court denied the petition of respondent praying that the order admitting to probate the alleged destroyed will of Henry D. Parsons be vacated and set aside, and on February 2, 1900, an appeal was taken from such denial to the circuit court. After appeal to the circuit court a supplemental petition was filed, setting up, in addition to the facts in the original petition, the adoption of the respondent, that he was the only heir at law, and praying that the judgment of the county court admitting the will to probate and order assigning the real estate to Cynthia A. Parsons be vacated and set aside, and that, if the order be not set aside, the petitioner be adjudged to be a son of Henry D. Parsons born after the making of the will, and entitled to the rights of an after-born child, and for general relief. Notice was afterwards given of motion for leave to file this petition, which was never heard. The executor, John Balson, answered this supplemental petition. September 3, 1903, an order to show cause why the appeal to the circuit court should not be dismissed for want of prosecution was made, and an affidavit filed tending to excuse the delay in the prosecution of the appeal, which motion was denied November 18, 1905, and the action ordered revived and continued against the executor. The action was afterwards tried, and the order of the county court refusing to set aside the probate of the alleged will was reversed, and the proceedings remanded to the county court, with direction to set aside the order dated September 5, 1890, admitting the alleged will to probate, and setting aside so much of its order which decided that Cynthia A. Parsons was the sole devisee of Henry D. Parsons, and which assigned the real estate of Henry D. Parsons to her, and that said court by a new order assign the real estate to Lafayette R. Parsons, subject to the rights of Cynthia A. Parsons, and for such other relief as might be just upon full consideration of the matters involved, from which judgment this appeal was taken.Duffy & McCrory, for appellant.

Gary & Forward (Chas. Barber, of counsel), for respondent.

KERWIN, J. (after stating the facts).

1. The first error assigned is the refusal of the court to dismiss the appeal for want of prosecution. Section 4038, Rev. St. 1898, provides that, if the appellant shall fail to prosecute his appeal with reasonable diligence, the circuit court, on motion of any person interested, shall dismiss the appeal, or affirm the judgment or act appealed from as such court shall deem just. The question presented here under this assignment of error is whether the court below abused its discretion in refusing to dismiss the appeal. It appears from the record that the appeal was pending for about five years before the motion to dismiss was made, but it also appears from the record and affidavits used on the motion for dismissal that substantial grounds existed for the delay. The time during which the appeal was pending was largely consumed in the litigation of other matters, notably the contest over the adoption proceedings of Lafayette R. Parsons, respondent, which contest was litigated through the county and circuit courts and finally determined in this court. It was quite reasonable that the litigation over the adoption of respondent should be finally settled before proceeding with the appeal. There was also litigation over the guardianship of Cynthia A. Parsons, the widow, and a contest over her will; also other litigation and negotiations for settlement, all of which consumed considerable time, as appears from the record, and which was embraced within the period of time now complained of. There was also destruction of papers and other matters referred to by the circuit judge in his opinion as tending to show that there was no unreasonable delay in the prosecution of the appeal. Without further discussion upon this branch of the case, we think the showing made upon the motion to dismiss the appeal was amply sufficient to justify the court below in denying the motion. Cavanaugh v. Scott, 84 Wis. 93, 54 N. W. 328;Carberry v. German Ins. Co., 86 Wis. 323, 56 N. W. 920;Kropp v. Kropp et al., 97 Wis. 137, 72 N. W. 381;Fleming et al. v. Ellison, 124 Wis. 36, 102 N. W. 398;McCann et al. v. Welch et al., 106 Wis. 142, 81 N. W. 996.

2. It is further claimed by counsel for appellant that the power of the county court to vacate the order or judgment in question was limited to one year after knowledge of the entry of such judgment or order, and several cases are cited upon this proposition. The general principle of law, as laid down in the authorities cited, does not apply where the order or judgment is attacked on the ground of want of jurisdiction or fraud. The court below found there was both want of jurisdiction and fraud, hence the one-year limitationdid not apply. We need not stop to consider whether or not the petition for the probate of the will of Henry D. Parsons as a lost will under the statute was sufficient to vest the county court with jurisdiction, because we are satisfied that the petition presented to the county court asking that the order probating the will be vacated and set aside made a case which...