Sweeney v. Union State Bank (In re Sweeney's Estate)

• Citation: 247 Wis. 376,19 N.W.2d 849
• Parties: In re SWEENEY'S ESTATE. SWEENEY et al. v. UNION STATE BANK.
• Decision Date: 21 September 1945
• Court: United States State Supreme Court of Wisconsin

247 Wis. 376

19 N.W.2d 849

In re SWEENEY'S ESTATE.

SWEENEY et al.

v.UNION STATE BANK.

Supreme Court of Wisconsin.

Sept. 21, 1945.

Appeal from an order of the County Court for Grant County, entered on January 8, 1945, and from a judgment of that court entered pursuant to such order on February 15, 1945, admitting to probate the will of Richard J. Sweeney, deceased, dated October 10, 1943; R. D. Walker, Judge presiding.

In the matter of the estate of Richard J. Sweeney, deceased. From an order and judgment of the County Court for Grant County, admitting deceased's will to probate and granting letters testamentary to the Union State Bank, proponent, C. A. Sweeney and others appeal, and from certain parts of the judgment, Loretta Eastman and others appeal. On proponent's motions to dismiss the appeals.-[By Editorial Staff.]

Motions granted and appeals dismissed without prejudice.

Robt. M. Rieser, of Rieser & Mathys, all of Madison, for appellants.

Geo. B. Clementson, of Lancaster, and John Harrington, of Hill, Beckwith & Harrington, all of Madison, for proponents of will of June 1939.

Harry E. Carthew and Donald J. McIntyre, both of Lancaster, for respondent.

ROSENBERRY, Chief Justice.

This matter is before us on a motion to dismiss the appeal of C. A. Sweeney, William Loy, Donald Loy, Virgil Loy and Leon Loy from certain parts of the judgment of the county court for Grant county, entered February 15, 1945. In connection with the disposition of this matter, we shall not state all of the facts but only such as are necessary to disclose the question for decision.

Richard J. Sweeney was a former justice of the peace of Lancaster, Wisconsin, of many years experience. He accumulated an estate of approximately $100,000. On June 15, 1939, he executed a will by which he gave all of his property, after usual expense and debt deductions, to his four sisters, the appellants herein. In addition to these sisters, he was survived by a number of nieces and nephews, children of four deceased brothers and sisters. On October 10, 1943, he executed a second will. This will expressly revoked all previously drawn wills and named the Union State Bank of Lancaster as trustee. It gave to the same sisters a life income and the remainder to the Bishop of the Diocese of La Crosse.

Sweeney died January 5, 1944, and on January 12, 1944, two of the surviving sisters filed a petition to probate the will of June 15, 1939. During the course of the hearing on this application counsel made known the fact that a subsequent will had been executed in 1943 and destroyed. The court directed the Union State Bank of Lancaster, Trustee named in the will, to present the 1943 will for probate. The beneficiaries of the will of June 15, 1939, filed objections to the probate of the will of October 10, 1943.

There was a trial and upon the trial the court found that the will of Richard J. Sweeney, executed June 15, 1939, was revoked by the will executed by him on October 10, 1943, and was not revived or validated by the destruction of the later will; that said will of October 10, 1943, was not revoked by said testator; and that letters testamentary should be granted to Union State Bank of Lancaster, Wisconsin. Judgment was entered accordingly.

On March 7, 1945, C. A. Sweeney, William Loy, Donald Loy, Virgil Loy and Leon Loy, heirs of the deceased, appealed from ‘the whole order rendered and entered in the above entitled matter in the County Court for the County of Grant on the 8th day of January, 1945, admitting to probate a certain instrument as and for the Last Will and Testament of the said Richard J. Sweeney, deceased, as reconstructed from the evidence and from the judgment and decree of the Court entered upon said order on the 15th day of February, 1945.'

This notice was addressed as follows:

‘To:

‘Donald J. McIntyre, Attorney for the Union State Bank, proponent of Will of 1943.

‘George B. Clementson and Hill, Beckwith & Harrington, attorneys for the proponents of the Will of June, 1939, for the four sisters of the deceased: Mrs. Loretta Eastman, Mrs. Nellie Allen, Katherine Sweeney and Julia Sweeney.

‘And to the Judge and Clerk of the County Court for Grant County, Wisconsin.'

On March 8, 1945, service of the notice of appeal was made upon the persons who had appeared in the action. No service was made upon the heirs who had not appeared. After the service of the notice of appeal, opposite counsel took part in settling bill of exceptions and stipulated that the bill so settled might be used on appeal. Counsel likewise admitted service of the brief of counsel for appellants, Sweeney et al.

On March 10, 1945, Loretta Eastman, Nellie Allen, Katherine Sweeney and Julia Sweeney appealed from certain parts of the judgment, which was likewise served only on appealing parties who had appeared.

On August 27, 1945, attorneys for the Union State Bank gave notice of a motion to dismiss both appeals because no service of the notice of appeal had been made upon the following persons: Edward Sweeney, Harold Sweeney, Martin Sweeney, Frank Sweeney, Leon Sweeney, Jay Sweeney, Alexander Sweeney, Carl Sweeney, Thomas Sweeney, John Sweeney, heirs at law of deceased, and James Sweeney, a legatee under the will of June 15, 1939. That service upon the Bishop of La Crosse, an adverse party, was not made until August 16, 1945, after the time for taking an appeal had expired. That no notice was served on James Sweeney or his legal representatives, he being a legatee under the 1939 will....