205 Wis. 648 | Wis. | 1931
Lawrence W. Bailey, a citizen of Grant county, died intestate on the 13th day of March, 1926. Upon her application, letters of administration issued to Cora B. Moon, a sister of the deceased, out of the county court of Grant county on the 13th day of May, 1926. On the 26th day of October, 1926, a final judgment settling the account of the administratrix and assigning the estate was entered. The estate was assigned to the brothers and sisters, and the children of a deceased brother, of the deceased.
'On the 18th day of December, 1929, James P. Cullen, general guardian of Ruth M. Bailey, ’ alias Ruth M. Clark, filed a petition in the county court of Grant county setting forth that his ward, Ruth M. Bailey, alias Ruth M. Clark, was the minor daughter and sole heir at law of said Lawrence W.'Bailey, deceased; that she was not advised nor informed of, nor made a party to, the administration proceedings; that she was in no way represented, and that there was
Upon the appeal of Cora B. Moon, as administratrix, as well as that of Emma V. Bailey and May Bailey Jones, a review of the determination of the court that Ruth Muriel Bailey, alias Ruth Muriel Clark, was the sole heir at law of the deceased, is sought. A motion to dismiss the appeal of Cora B: Moon, administratrix, was denied by this court on May 12, 1931. A similar motion was made, argued, and taken under advisement by the court on September l'5th, to be decided after argument of the principal issues in the case. Whether the appeal of Cora B. Moon, as administratrix, was or is efficient to secure a review of the final order of distribution, is a question that has never been decided by this court. As the administrator does not represent any particular heir, it is generally held that he is not aggrieved if some
An objection is made by the respondent, Ruth Muriel Bailey, in her brief upon the main argument, to the appeal of Emma V. Bailey and May Bailey Jones. Efficient objection might have been made to that appeal if made in time. Appeals from orders of the county court must be taken within sixty days. Sec. 324.04, Stats. Their appeal was not taken within sixty days. However, sec. 324.05, Stats., authorizes the county judge, upon cause shown, to allow an appeal thereafter and within one year. These appellants made an application to the county court of Grant county for permission to take the appeal. An order was made by the county court dated the 2d day of September, 1931, allowing these appellants to appeal from the order of September 9, 1930. At that time all of the papers and records in the case had
However, there is another objection to the efficiency of this appeal. The order of the county court permitted Emma VJ Bailey and May Bailey Jones to appeal from the order of September 9, 1930. They actually appealed from the order of December 9, 1930. Their appeal, therefore, is without the permission of the county court, and for this and the other reason above stated would have been dismissed had a motion for that purpose been made in due time. However, it is provided by sec. 269.51, in effect, that all objections to the regularity or sufficiency of the appeal are waived unless such objections shall be made by motion to dismiss such appeal before taking or participating in the taking of any other proceedings in the appellate court. As such motion was not made, the irregularities mentioned in the appeal of Emma V. Bailey and May Bailey Jones must be deemed waived, and we have jurisdiction to consider the merits of the case. In passing, we may say that the appeal of Ruth Muriel Bailey
The question first confronting us is whether the determination of the county court that Ruth Muriel Bailey, alias Ruth Muriel Clark, was the sole heir at law of the deceased, is supported by the law and the evidence. Ruth was, concededly, the illegitimate child of one Pansy Clark, who at the time of the hearing was married to Arlie Dull. The court found that Lawrence W. Bailey, deceased, was the father of Ruth. This finding is sustained by the overwhelming evidence. But the fact that she was his illegitimate offspring does not necessarily make her his heir. Sec. 237.06, Stats., specifies the contingencies under which an illegitimate child shall become the heir of the father. One of such contingencies is, when the father “shall, in writing signed in the presence of a competent witness, have acknowledged himself to be the father of such child.” While there are other contingencies specified in that section, proof of that mentioned is the one relied upon to constitute Ruth the heir of the deceased. As this was the law at the time Ruth was born as well as now, we are not concerned with the question of whether the law at present, or the law at the time of her birth, governs the situation. The only question is whether the proof justifies the finding, implied at least by the county judge, that the deceased “in writing, signed in the presence of a competent witness,'have acknowledged himself to be the father of such child.”
There is no doubt that deceased was arrested upon a bastardy charge and taken before a justice of the peace at Prairie du Chien, where a settlement was consummated between him and the mother of the child. There were present at such settlement the deceased, the mother, the father of the mother, the district attorney, and the justice of the peace. From the evidence it cannot be well doubted that at that time
Appellants attempt to discredit this testimony by referring to the forms for settlements in bastardy cases appearing in Bryant’s Wisconsin Justice at the time, in which no such language occurs. We do not think it can be assumed that Bryant’s form was necessarily followed, and the fact of its existence is not sufficient to destroy the force of her evidence. The proof that the deceased had in writing signed in the presence of a competent witness acknowledged himself to be the father of such child, is fully as strong as was the proof in Estate of Ecker, 174 Wis. 432, 182 N. W. 977, which was held to be sufficient to establish such acknowledgment. We do not think that the finding of the county court that Ruth was the heir of the deceased can be disturbed.
The further question arises concerning the power of the' county court to amend its original order of distribution. It is a principle now very familiar to the bar that a county court can at any time amend its orders where they have been induced by fraud. Estate of Staab, 166 Wis. 587, 166 N. W. 326; Guardianship of Reeve, 176 Wis. 579, 186 N. W. 736. It is contended, however, that in this.case no fraud was practiced upon the court which induced the original order of dis
If the establishment of fraud were necessary to vindicate the action of the county court in revising the original order of distribution, we should have no difficulty in determining
The power of courts of probate to set aside or revoke former orders made by them in probate proceedings was further elucidated by Dixon, C. J., in a concurring opinion in Archer v. Meadows, 33 Wis. 166, at pages 173 et seq. The Chief Justice there said:
“I hold that the probate court has power to grant relief in such cases by revocation of its decree approving the will, and*658 that this remedy is always open to the injured party, unless the same has been lost by the lapse of time and neglect to prosecute, or barred by the statute of limitations.”
Further he says:
“The jurisdiction of courts of probate in this respect seems to be very similar to that exercised by courts of chancery upon bills of review, or bills in the nature of bills of review, brought to examine and reverse decrees made upon former bills; or like that possessed upon bills to impeach decrees upon the ground of fraud. This power of the probate courts is, of course, not an unlimited one, but confined to cases.of fraud, mistake, irregularity, want of jurisdiction, and the like.”
He quotes from Campbell v. Thatcher, 54 Barb. 386, where many situations are recited in which the probate court may exercise its power to revoke and correct its former orders. Among such instances are mentioned those where a decree for distribution had been made, but before distribution a legatee, not known to be in existence, appeared; where the court had acted without acquiring jurisdiction of the person ; or where no guardian had been appointed for an infant. A part of the citation from Campbell v. Thatcher, supra, is to the effect that “where parties in interest have been represented at the hearing, and final sentence or decree has been given, such court has no general power of opening or reversing its decree, on the ground that it erred as to the law, or decided erroneously upon the facts.” Israel v. Silsbee, 57 Wis. 222, 15 N. W. 144, and Estate of Leavens, 65 Wis. 440, 27 N. W. 324, are cases in which the facts were analogous to. the facts in this case, and in which the principles of the earlier cases were applied and relief granted.
We are satisfied that in this case material facts were suppressed by those who claimed the estate and who knew the facts, and that the general order of distribution was entered upon á mistaken'notion of the facts. This in'"itself aroused the jurisdiction of the county court’to vacate and amend its
Beck v. State, 196 Wis. 242, 219 N. W. 197, and Estate of Cudahy, 196 Wis. 260, 219 N. W. 203, relied upon by appellants, are not applicable here, for at least two reasons: one is, that the proceedings involved in those cases were not probate proceedings. They were special judicial proceedings provided by statute. The other is, that the judgments in those cases were not predicated upon a mistake of fact. The erroneous judgments there dealt with were due to a mistake of law, and, as we have seen, even probate courts cannot vacate their judgments because of mistakes of law.
It is further contended that the order appealed from is void because no notice was given of the application of the guardian of Ruth M. Bailey, praying for the vacation of the original order distributing the estate. It is contended that notice of the motion of the guardian ad litem should have been given to all who would be affected by a vacation of the original order or judgment. This might have been true if it were a circuit court proceeding, but it was not. It was a county court proceeding relating to the probate of estates. Sec. 324.19, Stats., provides that “When notice of any proceedings in a county court shall be required by law or be deemed necessary by such court and the manner of giving the same shall not be directed by any statute, such court shall order notice of such proceedings to be given to all persons interested therein in such manner and for such length of time as it shall deem reasonable.” The county court ordered that
While the judgment in this case must be affirmed, the respondent will be denied costs for printing brief, by reason of the failure to supply a “synopsis or brief résumé of the argument,” as required by rule 9. While there does appear upon the fly-leaf of the brief a tabulation termed an index, it does not contain the information which enables the court to turn to that part of the brief where it will find counsel’s discussion upon any of the many points presented. Such an index utterly fails to comply with the purpose of the rule.
By the Cottri. — The appeals of Cora B. Moon and Ruth Muriel Bailey are dismissed. On the appeal of Emma V. Bailey and May Bailey Jones the judgment is affirmed. No costs to be taxed for printing respondent’s brief.