57 Wis. 324 | Wis. | 1883
The testatrix, in the will of June 4,1878, expressly revoked all former wills. That will would probably have operated as a revocation of any former will without words to that effect, since it made a complete disposition of the estate of the testatrix, both real and personal. Assuming the last will to be valid, there can be no doubt about the correctness of the legal conclusion of the circuit court, that it was entitled to be admitted to probate, but that the first will was not. But in admitting it to probate the circuit court impressed upon the will the trust or charge of the first will, except in respect to the legacy of $100, given to her
It seems to us this position of counsel is sound. It is obvious the sole question for decision in the circuit court on the appeal was whether the decree of the county court'admitting to probate the first and refusing to probate the last will was correct. The circuit court decided that it was not; that the evidence showed that the last will was the one entitled to probate; So it will be seen the real point before the court and decided was as to the due execution of the last will. That question being disposed of, no other question was legitimately before it for adjudication. Why, then, should the issue, whether the testatrix was of sound disposing mind when she made that will, and whether that testamentary instrument was so executed as to meet the statutory requirements on the subject, be embarrassed by a consideration of other questions not'properly connected with it. It is true, the contestants of this will claim that the testatrix had made a valid agreement binding herself to make a particular disposition of her property by her will, and different from the one she did make therein. Admit that such an agreement was made, it was not proper to enforce it on probating the will. The agreement, if one which should be enforced, can be carried into execution after the will is admitted to probate. It is not necessary that the agreement be enforced at
The questions whether the will should be admitted to probate, and whether a valid agreement had been made by the testatrix which should be enforced, are quite distinct, and cannot well be adjudicated in the same proceeding. And it is plain that the rights of the party claiming the estate under the alleged contract will be in no way prejudiced or affected by the order of the court admitting the will to probate. It must be understood that the right to enforce the contract is expressly saved or reserved to such party notwithstanding this decision.
It was said on the argument that the circuit court, in imposing in this proceeding a charge or trust on the estate of the testatrix in favor of Clara J. Farmer, relied on the case of Brook v. Chappell, 34 Wis., 405, to sustain its judgment. But that case is not an authority to sustain its action, as was clearly shown by appellant’s counsel. In that case the will had been admitted to probate. Afterwards, in a proceeding instituted for the purpose, one of the executors asked for the •probate of a nuncupative codicil to the will already probated. This court decided that the nuncupative codicil could not be admitted to probate, but that the county court, instead of the relief asked for, might recognize and enforce a trust in
By the Gov/rt.— That part of the judgment of the circuit court appealed from is reversed, and the cause is remanded for further proceedings in accordance with this opinion.
