Rule's Estate, In re
| Decision Date | 28 February 1958 |
| Citation | 88 N.W.2d 734,3 Wis.2d 301 |
| Parties | In re ESTATE of Luella RULE, Deceased. Helene DYER, Appellant, v. Daniel A. McKINLEY, Administrator, Respondent. |
| Court | Wisconsin Supreme Court |
Knudson & Morrow, Dodgeville, George A. Solsrud, Madison, of counsel, for appellant.
James P. Fiedler, Mineral Point, for respondent.
The complaint filed contained an allegation that there was an agreement that claimant should be paid for such services from decedent's estate and specifically by filing a claim therefor against said estate after the death of the mother. The trial court determined that this allegation, which was not contained in the claim as filed, constituted an amendment of the claim by which the claimant enlarged her demand and materially changed the nature of her action. The court cited a general rule that claims filed within the time limited therefor cannot be amended after the expiration of such time so as to increase the amount or nature of the relief or materially change the basis therefor. It cited the following cases as authority for this rule: In re Estate of Von Nobel, 239 Wis. 233, 1 N.W.2d 76; In re Estate of White, 223 Wis. 270, 270 N.W. 34; In re Estate of Leu, 172 Wis. 530, 179 N.W. 796. Those cases do support that general rule.
We do not think the present case comes within that general rule. In the present case the claimant did not seek to amend the original claim nor was the complaint, filed at the request of the court, offered as an amendment. No amendment of the claim was necessary. We quote from 1 Gary, Wisconsin Probate Law (5th Ed.) p. 384, sec. 405, as follows:
'Form and Sufficiency of Claim. No particular form is required for due presentment of a claim in probate. The practice is not intended to be formal, but rather to permit summary action as informally as possible. Statutes relating to pleadings in courts of record are accordingly inapplicable. Failure of a claim, for instance, clearly to show a cause of action accruing within less than the period of limitations prior to death of the decedent is merely a matter of indefiniteness, not a fatal defect. * * * (Emphasis supplied.)
The case of Longwell v. Mierow, 130 Wis. 208, 109 N.W. 943, involved a claim by a son against his father's estate for services performed. In that case an amendment was permitted to allege that the claim was to mature on the death of the decedent. This court approved the amendment and stated (130 Wis. at page 210, 109 N.W. at page 944):
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