| Wis. | Feb 4, 1930
Lead Opinion
The question, presented upon this appeal requires an interpretation of sec. 318.01 (2), Stats., already set out. On behalf of the petitioner it is argued that the statute is mandatory; that it was the duty of the court to make a reasonable allowance out of the estate, and that refusal of the court to make the petitioner any allowance was erroneous. On the other hand, it is argued that the statute is purely discretionary; that the widow has received certain insurance moneys and other resources, and that it would be equitable to deny her support under the statute, under all the facts and circumstances of this case.
It is considered that the object and purpose of the statute is to substitute the estate of the husband for the deceased husband during the progress of the settlement of the estate so far as support of the family is concerned. What allowance should be made is to be determined under all the facts and circumstances. Ordinarily in the case of a solvent estate it would be such sum as would maintain the family in approximately the same degree of comfort in which they
There were originally three appeals in this case — (1st) that of Elza Schultz, (2d) that of G. P. Thiedt, administrator, and (3d) that of Ruby A. Gordon, divorced wife of the deceased. The appeal of Ruby A. Gordon has been abandoned by counsel. Her counsel joined in the brief of the guardian ad litem of Max and Maxine Sullivan, children of Mrs. Gordon. The guardian ad litem contends that the appeal of Elza Schultz should be dismissed because not perfected in accordance with the statute, and that the appeal of G. P. Thiedt, administrator, should be dismissed because he has no right to appeal. The same questions would be raised upon each appeal.
Sec. 324.01 (2) provides:
“In counties having a population of over fifteen thousand, in all cases not otherwise provided for, any executor, administrator, guardian, trustee, or any person aggrieved by any order, judgment, decree, determination or denial of the county court shall have the right to have the same reviewed by writ of error or appeal from the county court to the supreme court.”
In McKenney v. Minahan, 119 Wis. 651" court="Wis." date_filed="1903-12-11" href="https://app.midpage.ai/document/mckenney-v-minahan-8187788?utm_source=webapp" opinion_id="8187788">119 Wis. 651, 97 N. W. 489, it was said:
“Sec. 4031 [now sec. 324.01] expressly recognizes an administrator standing as the representative of persons who would be injuriously affected by a determination of the county court, if it were allowed to stand, as a party*594 aggrieved. That is the plain meaning of the language: ‘In all cases not otherwise provided for, any executor, administrator, guardian, trustee or any person aggrieved,’ etc. Plainly, any one of the persons specially mentioned is recognized as a party aggrieved, when any one whose interest he represents is aggrieved. It was the duty of the administrator to preserve the property of the estate, so far as he legally could, for transmission to the heirs of the deceased. In the settlement of claims against the estate he stood for them. Any injury to their interests, in legal effect, was a grievance to him within the meaning of the appeal statute. ... It is elementary that the legal representative of interests involved in litigation, prejudicially affected by the result, is a party aggrieved within the meaning of appeal statutes.”
Within the doctrine of this case the administrator was entitled to take the appeal.
We shall not discuss the proposition that the appeal of Elza Schultz was not perfected. It was quite apparent that it was taken, in good faith, and if not perfected it would be our duty under sec. 274.32 to stay the proceedings and permit it to be perfected. All questions presented upon her appeal being presented upon the appeal of the administrator, further consideration is not necessary.
By the Court. — That part of the order appealed from is reversed, and cause remanded with directions to the trial court to make an allowance pursuant to the statute as indicated in this opinion.
Dissenting Opinion
(dissenting). While I agree with the construction of the statute relating to the support to which a widow is entitled from the estate of her deceased husband, I cannot agree that the administrator had any right to appeal. The right of appeal is a statutory right awarded to those who have an interest in the subject matter of the litigation and whose interests are adversely affected by the judgment or order appealed from. While it is within the power of the legislature no doubt to enlarge the class which may be
In this case the administrator appealed from an order denying to a widow support money out of the estate of her husband. That the administrator represents the estate as a whole, and the heirs generally, is fundamental. The application of the widow for support money was a proceeding having for its purpose the depletion of the estate so far as the general -heirs were concerned. It was to her interest to have the petition granted. It promoted the interests of the estate and of the heirs generally to have the petition denied. In this proceeding it was the duty of the administrator to represent the estate and the heirs generally. Their interests were adverse to the- interests of the widow. A denial of her petition prejudiced no interests represented by the administrator.
Sec. 324.01 (2), Stats., gives the right of appeal to “any executor, administrator, guardian, trustee or any person aggrieved by any order, judgment, decree, determination or
The case of McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489, cited and relied upon in the opinion, is not an authority supporting the right of the administrator to appeal in this case. In that case the appeal was from an order
In my judgment the administrator had no more right to appeal from the order disallowing support money to the widow than he would have to appeal from an order disallowing a claim against the estate.
Concurrence Opinion
{concurring). I concur in the result of the majority decision, but am not prepared to sanction the rule that the personal representative is a party aggrieved who may appeal in all cases regardless of the question involved upon the appeal. I am satisfied, however, that the administrator was a party aggrieved by the order here in question, because he had advanced money to the widow for her support which could not be credited to him in the settlement of his accounts if the order denying the widow’s allowance was not reversed. This fact made him a party aggrieved by the order involved in this appeal.
An administrator has no right to pay out funds in estates in his custody for the support of a widow without the entry
The question presented is the right of the administrator to appeal, — not the question whether the expense of such an appeal should be paid out of the estate, which is a question that should be left to future determination.