45 Wis. 614 | Wis. | 1878
The administration of this small estate seems to have given rise to a great deal of unnecessary litigation and expense. It is now a matter of sincere regret that the cause is not in a position to enable us to put a construction upon the will and stop further contention over it. But it is not. When the case was here on a • former appeal (41 Wis., 260), we decided that the time for construing the will had arrived,' and that it was the duty of the ciucuit court to proceed on the appeal from the order of the county court, and construe the will. The cause was remitted to the circuit court for that purpose. The circuit court, however, on the last hearing, failed to execute the mandate of this court by construing the will, but merely ordered that so much of the order of the county court, dated January 8, 1875, as directs the executor to pay over to Edward Sohceffner the money remaining in his hands or under his control, on receiving a bond from the said Sohceffner as specified in the order, be reversed, but declined to pass upon any other issue raised, or to receive evidence upon such issue, for the reason that the executor had no interest in them. This view of the circuit court we deem incorrect. As a general rule, we suppose, whenever the pro
Some of the questions discussed by the learned counsel for the executor on this appeal are res adjudicates. This court has already decided that the county court had jurisdiction to construe the will on ordering distribution of the estate; that proper notice of the proceeding had been given to the parties interested under the will; and that the county judge was not disqualified by anything appearing on the record from acting in the matter. But it is now claimed that the circuit court for Washington county had no jurisdiction of the matter, because there was a second change of venue on account of the prejudice of the judge of the circuit court. It is said that the statute does not allow a second change of venue on that around or for that reason. Whatever force there might be ir
It follows from these views that the order of the circuit court for Washington county must be reversed, and the cause remanded to that court for further proceedings according to law.
By the Court. — It is so ordered.
A motion by the respondent for 'a rehearing was denied.