Chase v. Ross, 36 Wis. 267

36 Wis. 267 | Wis. | 1874

Lyon, J.

I. If the instrument purporting to be.the last will and testament of Samuel Bedient, deceased, was duly admitted to probate as such, the appointment of Roderick C. Wood as administrator of the estate of the deceased, with the will annexed, was valid. The authority of Mrs. Bedient as executrix was extinguished by her subsequent marriage, and, there being no other executor, the county court had authority to appoint such administrator. R. S. 1849, ch. 67, secs. 8 and 10. But if such instrument was not proved and allowed as the last will and testament of the deceased, it seems clear that the court had no power to appoint such administrator; for the appointment of an administrator with the will annexed where there is no will, is an absurdity.

It is argued, however, by the learned counsel for the defendant, that from the record in this case it should be presumed that the instrument purporting to be the last will and testament of the deceased was duly admitted to probate. This is an important proposition, perhaps a controlling one in the case, and demands careful consideration.

The deed from Wood, the administrator, to Chandler, the grantor of the defendant by mesne conveyances, when read in evidence, raised a presumption that all the proceedings in the county court preliminary thereto were regular, and that it conveyed the title to the premises in question to Chandler. But when the records and papers pertaining to the estate were introduced, and failed to show that the will had been proved, and especially when it was made to appear affirmatively that there was nothing on file or of record in the office of the county judge showing that fact, the presumption then was that no will had been probated, unless there were facts proved in the case from which it may reasonably be inferred that a portion of the records or papers in the case have been lost.

This was evidently the view of the learned counsel for the defendant, for on the trial he introduced evidence to the effect that after the death of Bedient, and at the time when the proceedings were bad concerning his estate, the county judge kept his official papers and transacted his official business in the office of an attorney who acted as his clerk, and that several years afterwards the board of county supervisors employed, some person to record a quantity of unrecorded official papers which had been allowed to accumulate during several years in the office of the county judge. He also attempted to prove the publication of a notice of the hearing of an application to the county court to admit to probate the will of the deceased. The proof thus offered (but which the court rejected) was a notice dated February 13, 1852, alleged to have been published on that day and for three succeeding weeks thereafter in the “ Oshkosh Democrat.” The notice was signed by the county judge, and recited that, whereas an instrument purporting to be the last will and testament of Samuel Bedient, late of the town of Algoma, county of Winnebago, Wis., had been filed in his office, and also an application to admit the same to probate, thereupon it was ordered that such matter be set for hearing at his office in Oshkosh on the 1st Monday in March, 1852, at 10 o’clock A.. M., and that notice thereof be given by publication for four successive weeks in the Oshkosh Democrat, prior to such hearing.

For reasons which will be briefly stated, we think that the proofs thus made and offered fail to raise a presumption that any of the records and papers concerning the estate of Bedient have been lost. 1. There is no testimony tending to show that those records or files were carelessly kept. True, they were kept in the business office of the clerk of the county judge ; but it does not appear that both were not careful men, and that the records and papers were not kept as safely as they would have been in any other place. 2. Although it appears that documents in that office were not promptly recorded, yet that fact raises no presumption that they were not all preserved. 3. The notice of February 13, 1852, does not aid such presumption, because it was not a sufficient notice. The' first Monday in March, 1852 (the day appointed for the hearing), was the first day of that month, as will appear by a reference to the calendar of that year. The order of the county court required .the notice to be published for four weeks, and the statute required a publication thereof for three weeks, before the hearing. R. S. 1849, ch. 66, sec. 18. The publication was made only seventeen days before the day appointed for the hearing, and was therefore insufficient. The earliest day the hearing could lawfully be had, was Friday, March 5th. See Eaton v. Lyman, 33 Wis., 34. The fair inference is, that no hearing was had pursuant to such defective notice. Had it appeared that there was a legal publication of such notice, it may be that the presumption would be different. Bat we do not determine that point. 4. Although the county court seems to have acted upon the hypothesis that Bedient left a last will and testament, it is not stated or recited in any of the proceedings that the same was ever admitted to probate. It may also be observed that after Mrs. Bedient declined to take under the will, there being but one heir, to whom and to the widow the whole was given, the estate would necessarily be distributed the same as though Bedient had died intestate. This furnishes a probable reason why the will might have been considered of no importance, and why formal pi’obate thereof was not made.

The foregoing considerations, and others of a kindred character which it is unnecessary to mention, lead us to the conclusion that, under the evidence, there is no room for the presumption that the will was duly proved and allowed, or that any of the records or papers in the matter of the estate of Bedient have been lost. On the contrary, it must be held that such presumption was rebutted; that the burden is upon the defendant to show the probate of the will; and that he has failed to do so. We must therefore assume, and hold that it does not. appear, either presumptively or otherwise, that any will of Samuel Bedient was ever admitted to probate, and, consequently, that the county court bad no power to appoint an administrator de bonis non with the will annexed.

II. It remains to be considered in what manner the sale of the land in controversy is affected by the want of jurisdiction in the county court to appoint such administrator. In Sitzman v. Pacquette, 13 Wis., 291, it was held that a sale under such circumstances is void. Mr. Justice Cole dissented in that case, but on other grounds. It is understood that he concurred in the proposition just stated. The same doctrine was held, or recognized as correct, in the subsequent cases of Bailey v. Scott, id., 618; Frederick v. Pacquette, 19 id., 541; and Showers v. Pacquette, mentioned in the latter case. But Sitzman v. Pacquette was ruled by the Eevised Statutes of 1839, which do not contain the provisions found in the revision of 1849, ch. 65, sec. 52, reenacted in the revision of 1858, ch. 94, sec. 62 (Tay. Stats., 1193, §62). That section is as follows: “ In case of an action relating to any estate sold by an executor, administrator or guardian, in which an heir or other person claiming under the deceased, or in which the ward or any person claiming under him, shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear, 1. That the executor, administrator or guardian was licensed to make the sale by the probate court having jurisdiction. 2. That he gave a bond which was approved by the judge of probate, in case a bond was required on granting a license. 3. That he took the oath prescribed in this chapter. 4. That he gave notice of the time and place of sale as in this chapter prescribed; and, 5. That the premises were sold accordingly, and the sale confirmed by the court, and that they are held by one who purchased them in good faith.”

The effect of this section is, that if any of the conditions therein .mentioned are wanting or do not appear either by direct proof or legal inference, the sale is invalid. Hence, in the present case, if the county court had no jurisdiction to grant license to sell the land in controversy, the sale is void. If the court had no power to appoint an administrator de bonis non, or to grant letters of administration with the will annexed, it seems too clear for argument that it could not grant a valid license of sale. Before a step can be taken towards granting such license, there must be a lawful executor or administrator. Commenting upon the first subdivision of the section above quoted, in Reynolds v. Smith, 20 Wis., 374, Mr. Justice Cole says: “ By 1 the probate court having jurisdiction ’ is obviously meant the probate court of the county in which the deceased resided at the time of his death, and which had jurisdiction of the estate.” (p. 380). In no correct sense can it be said that the court has jurisdiction of the estate, before proper proceedings are instituted therein to prove the will (if there be one), or to appoint an administrator.

The conclusion is inevitable, that it does not appear that the county court had jurisdiction of the estate of Bedient, within the meaning of the statute, and hence that the sale by Wood to the grantor of the plaintiff is void, and the conveyance made pursuant thereto conveyed no title.

III. It was earnestly argued by counsel for the defendant, that the order of the county court confirming the sale should be held conclusive of the jurisdiction of the court and of the regularity of all proceedings in the matter prior to such confirmation. But we think it very clear that the intention and effect of the statute above quoted are, that, notwithstanding the confirmation, the absence of the conditions therein specified will render the sale and conveyance void. If, however, this is an erroneous view of the law, it has been repeatedly acted upon by this court, and the maxim stare decisis applies. We must adhere to the principle of former adjudications in this behalf, and only the legislature can change the rule.

The circuit court rejected certain testimony offered to prove due publication of the notice of sale; but the views already expressed render it unnecessary to determine whether the court ruled correctly or otherwise in rejecting the same.

By the Court. — The judgment of the circuit courtis affirmed.