166 Wis. 587 | Wis. | 1918
By the cases of Will of Dardis, 135 Wis. 457, 115 N. W. 332, and Will of Rice, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778, it is the declared law of this state that, given a valid will and a lawful declaration by a competent testator as to the manner in which the property that was his is to be disposed of after his death, it is the duty of the court having probate of the estate to carry out the wishes of such testator regardless of the wishes or agreements of those who may be beneficially entitled in the estate; that parties interested in such an estate cannot make a valid and binding contract or stipulation providing for a different disposition which will be enforced by a court. It is the duty of the court as an obligation resting upon it as a court, as a duty ex officio, and for reasons of public policy, to see to it that the wishes of the one who is no longer in existence as to the lawful disposition of that which was once his, shall be fully and properly carried out. There is no disposition to recede from the policy declared in those cases or to change the rule that parties to any such agreement or stipulation cannot have the same enforced by the court. And this necessarily also determines that the petitioners acquired no rights under the alleged stipulation between them and the other relatives of deceased which the court will or should recognize or enforce.
TRat doctrine, however, does not necessarily determine
It is evident tbat there is a substantial difference between tbe two eases above cited and tbe case at bar. In tbe Dardis Case there was a stipulation to tbe effect tbat tbe testator was mentally incompetent to make a will and an agreement tbat tbe estate might be disposed of by administration, but upon appeal to tbe circuit court there was a trial de novo and a finding tbat tbe testator was sane and tbe will properly executed. Those facts so found as to its being a valid will then became a premise upon which tbe conclusion properly followed tbat a stipulation by those interested in tbe estate, providing for a different disposition than tbat of tbe testator, should not be upheld.
In the Rice Case there was a stipulation reciting tbat a contest bad been proposed on the suggested ground of tbe incompetency of tbe testator, yet in disposing of tbat case in this court it was determined tbat from all tbe record it was apparent tbat there was no serious contest really considered, and in tbat case again, as in tbe Dardis Case, it was assumed tbat tbe will, tbe terms of which* it was proposed by agreement to vary, was a valid will.
In the subsequent cases of Will of Reynolds, 151 Wis. 375, 384, 138 N. W. 1019, and Schoenwetter v. Schoenwetter, 164 Wis. 131, 135, 159 N. W. 737, tbe references to this doctrine evidently recognize tbat it is based upon this assumption: that there is a valid will which must be upheld. ■
Here,, however, if tbe allegations of tbe petition are true, there is a situation disclosed which would necessarily negative tbe existence of tbe premise upon which tbe doctrine of tbe cases above cited was based. If, as a matter of fact, Clara Staab was not legally competent to make a will, there was in effect a fraud perpetrated upon tbe court in tbe presenting of such a document for probate and supporting it by testimony tending to establish tbat it was tbe valid will of a
Tbe adjudication of insanity and the commitment to tbe hospital for the insane would establish at least a prima facie incapacity for making a will while such adjudication of insanity is in force. Woodville v. Morrill, 130 Minn. 92, 153 N. W. 131; Wheelock’s Estate, 76 Vt. 235, 56 Atl. 1013; Cowdry’s Will, 77 Vt. 359, 60 Atl. 141; Hoopes' Estate, 174 Pa. St. 373, 380, 34 Atl. 603; Hoffman’s Estate, 209 Pa. St. 357, 360, 58 Atl. 665.
The distinction is very manifest between such an adjudication of and continued commitment for insanity as bearing upon testamentary capacity and the mere appointment of a guardian under the spendthrift statute such as is passed upon in the cases of Estate of Bean, 159 Wis. 67, 82, 149 N. W. 745; Small v. Champeny, 102 Wis. 61, 78 N. W. 407; Will of Slinger, 72 Wis. 22, 37 N. W. 236; Slaughter v. Heath, 127 Ga. 747, 57 S. E. 69, 27 L. R. A. n. s. 1, note p. 54.
The mere fact that the year had gone by in which a formal appeal might be taken from the order admitting the will to probate, or that interested persons, knowing the facts, concealed or withheld them from the court, does not alter the position of the county court itself, having, as here, tbe matter of the estate still before it to take the proper steps on its own motion to determine whether or not there has been such fraud perpetrated upon it under the guise of regular proceedings. While the estate is still before the court for administration it is still before it to have its proceedings purged of fraud, and the mere passing of the time within which parties might appeal to another tribunal is immaterial. Parsons v. Balson, 129 Wis. 311, 109 N. W. 136; Estate of
It is therefore proper that the court having jurisdiction of the administering of the estate of-the deceased Olara Staab, of its own motion, it now having had the matter called to its attention, proceed to determine whether or not that which has been admitted as a valid will was in fact no will and that the facts so showing such invalidity had been fraudulently concealed from it, and, if so found, to then administer the estate under the law as that of an intestate, entirely disregarding any claim of right or interest that the petitioners might try to assert under any such alleged stipulation or agreement as is set forth in their petition. The record, therefore, should be remitted to the probate court of Dodge county for such further proceedings as justice may require. If authority need be cited for so returning this record for other proceedings or relief than that which may have been asked by the parties, it may be found under sec. 2836b, Stats. Peters v. C. & N. W. R. Co. 165 Wis. 529, 162 N. W. 916; Micek v. Wamka, 165 Wis. 97, 161 N. W. 367; McDonald v. Apple River P. Co. 164 Wis. 450, 160 N. W. 156; Komorowski v. Jackowski, 164 Wis. 254, 159 N. W. 912.
By the Court. — The order of the circuit court is reversed, and the action remanded to the circuit court to be remanded to the county court for further proceedings therein in accordance with this opinion. Respondent to pay the clerk’s fees of this court; no other costs or disbursements to be allowed.