90 Wis. 480 | Wis. | 1895
The county court has power, in furtherance of justice, upon petition, to set aside or revoke an order or judgment of distribution which has been procured by fraud.
It is urged that the petitioners are pursuing the wrong remedy. That they should, instead, have moved the circuit court to allow an appeal from the judgment of distribution. Perhaps that proceeding would have given them the needed relief. But the mode of attack which they have chosen is equally direct, and is probably fully as efficient as the remedy by appeal would be. The remedy by appeal is not exclusive. The fact that a remedy by appeal was open to them does not preclude the county court to remedy the wrong done by its own order. Estate of Leavens, supra.
It is urged that a weak case for relief on account of fraud is made by the petition. That seems to depend, in large measure, upon the point of view. The allegations of fraud, while not so direct and single as might be desired, are yet neither weak nor vague. The petitioners were two old people, women, living in a foreign state, distant several hundred miles from the city where the estate was being settled. They believed and acted upon representations made to them on behalf of a person whom they trusted, who had borne the apparent relation of adopted daughter to their deceased brother. They were told that the estate was small; that all, except a few- legacies, was given by the will to this adopted daughter; and that, to carry out the last wishes of their deceased brother, these conveyances were convenient. They might have learned the truth by proper inquiries at Milwaukee, or by consulting the records of the county court. They did neither. They believed and trusted the information- given them. Although it can now be easily seen that such credence was imprudent, the law does not denounce it as negligence. They might, without risk of that imputation, give the credence and omit the inquiries. Mrs. Keefe
But, it is urged, “if Maria H. Keefe perpetrated any fraud upon these petitioners, they.have an adequate and ample remedy by direct suit against her; but what is the use of pursuing the circumlocution route through the probate court?” What use indeed! Suppose the petitioners had brought a direct suit, without pursuing this “ circumlocution route,” and Mrs. Keefe should have set up the defense that this question had been adjudicated, by a court of competent jurisdiction, in her favor. It is not obvious what reply could be made, nor how that defense could be met and obviated, for it has been held that such a judgment of the county court is binding upon the parties who have had notice. Gillett v. Treganza, 13 Wis. 472; Appeal of Schœffner, 41 Wis. 260; Jones v. Roberts, 84 Wis. 465, 471. And the judgment recites that due, notice had been given. Evidently, it was a dictate of prudence to clear away this apparent obstruction, if possible, before bringing the direct .suit suggested. That there may be a remedy, by a direct suit is no objection, to granting this motion. Brook v. Chappell, 34 Wis. 405.
So no reason is apparent to this court why the county court should not have entertained the petitioners’ application to set aside the judgment and distribution. Nor is any reason perceived why it should be necessary to open or set
By the Court. — The order of the circuit court is affirmed, and the cause remanded to the county court of Milwaukee county with direction to deny the motion of the executors and Maria H. Keefe to quash the amended and supplemental petition and citation theretofore issued, and for further proceedings according to law.
