Flood v. Kerwin

113 Wis. 673 | Wis. | 1902

Cassoday, C. J.

It is claimed 'that the county court acquired no jurisdiction to admit the paper writing in question to probate, for want of the requisite notice to the heirs at law. The statute provides that notice of the time and place of proving the will “be given by personal service on all persons interested at least ten days before the time appointed or by publication in a newspaper as provided in sec. 4045, at least three weeks successively previous to said .time; and no will shall be proved until notice shall be given as herein provided.” Secs. 3787, 3805, Stats. 1898. The only notice here claimed to have been given is by such publication. The section therein referred to prescribes the manner of designating the newspaper in which such notice is to be published. Another section of the statute provides that “the affidavit of the printer or foreman of such printer of any newspaper in the state of the publication of any notice or advertisement required to be published in pursuance of any law of the state shall be received in all cases as presumptive evidence of such publication and of the facts stated therein.” Sec. 4113, Stats. 1898. There are other sections of the statutes requiring the affidavit of the printer, or his foreman or principal clerk, to prove publication of notice or summons in judicial proceedings, and in one of these he is required to specify “the date of the first and last publication.” Sec. 4174; and subd. 4, sec. 2642, Stats. 1898. Counsel for the respondent contends that the statement in the printer’s affidavit to the effect that the first insertion of tbe notice in the paper was April 30, 1899, and the last May 4, 1899, should be rejected; but, as indicated, the affidavit is “presumptive evidence of such publication and of the facts stated therein.” We are not aware of any rule of law authorizing such rejection of Specific facts merely because they are repugnant to a' more general statement. While the affidavit of the printer was insufficient to show jurisdiction over the several heirs at law, yet it does not follow that the judgment should be reversed on that ground.

2. The case is quite similar, in the particular mentioned, to O’Dell v. Rogers, 44 Wis. 136. In that case it was held that “where the proper county court, after a hearing at the time and place duly appointed therefor, has admitted a will to probate, issued letters testamentary to the persons named in it as executors, etc., the proceedings, while invalid as to persons not duly notified who did not appear or assent to them, and have done no acts of ratification, are valid as to all who were duly notified, or who appeared or assented to them.” Mohr v. Porter, 51 Wis. 494; Melms v. Pfister, 59 Wis. 190, 191; Heminway v. Reynolds, 98 Wis. 501; Kruczinski v. Neuendorf, 99 Wis. 264, 271; Hubbard v. C. & N. W. R. Co. 104 Wis. 160, 165. See the statute (sec. 2443, Stats. 1898). We must hold that the court had jurisdiction as to such parties as appeared in the case, including the ap^-pellant. But to avoid future litigation, the records of the county court should show jurisdiction of all the heirs at law before the administration of the estate.

3. Error is assigned because the circuit court failed to make findings. This court has repeatedly held that in equity cases the mere absence of findings of fact does not, of itself, necessitate a reversal, if the evidence supports the judgment. Disch v. Timm, 101 Wis. 189, and cases there cited; In re Callahan, 102 Wis. 561. So this court has repeatedly held that, on an appeal from an order or judgment admitting or refusing to admit a will to prohate, the circuit court proceeded as a court of equity. Bryant v. Pierce, 95 Wis. 338, aud eases there cited.

4. It is claimed that the paper in question was not executed as the law requires that a will should he executed. This is put upon the ground that one of the subscribing witnesses (Kennedy) testified that he signed before the testator. But the other subscribing witness (Welch) testified that he drew both papers; that the first was signed by Dennis Kerwin in 1890, and the other in 1899; that, after he wrote the second paper, Dennis Kerwin got up and signed it, and then asked him (Welch) to sign it; and that he (Welch) then said, Let Mr. Kennedy sign it first, and that Mr. Kennedy signed it, and then he (Welch) signed it. The paper corroborates Welch, wherein it states, “which I now sign before witnesses,” followed by the name of Dennis Kerwin, with the witnesses below. Besides, it is undisputed that the first paper, which is claimed to be the will, was signed and sealed by Dennis Kerwin prior to the time when Kennedy signed as a witness. It is not essential that the testator sign in the presence of the witnesses, if he has in fact signed prior to the time they do. White v. Trustees of British Museum, 6 Bing. 310; Welch v. Adams, 63 N. H. 344; Hall v. Hall, 17 Pick. 379; Adams v. Field, 21 Vt. 256. “In the absence of clear proof that the witnesses to a will signed it before the testator did, it will be presumed that the testator signed it first.” Allen v. Griffin, 69 Wis. 530: Will of O’Hagan, 73 Wis. 78. We must hold that the formal execution of the paper was sufficiently proved, to have been executed as a will.

5. It is claimed that the paper writing in question is void upon its face for uncertainty, and hence should not have been admitted to probate. This is put upon the ground that the instrument purports to give to the two daughters therein named the forty acres of land therein described, or $1,000, but fails to positively state which. By the statutes of this state “the probate of a will of real or personal estate” is “conelu-sive as to its due execution.” Sec. 2294, Stats. 1898; In re Valentine's Will, 93 Wis. 50. As indicated, tbe evidence is sufficient to prove tbe formal execution of tbe paper as a will. The question recurs whether it is a will. It certainly purports to dispose of property of tbe testator after bis death. There can be no uncertainty as to tbe objects of bis gift being tbe two daughters named, and hence we are not aided by tbe citation in 2 Underbill, Wills, § 905. Under tbe section of tbe statute cited, a will is not effectual to pass title to any property until it has been “duly proved and allowed in tbe county court.” But when so admitted to probate it relates back to tbe time of tbe death of tbe testator, and is to- be treated as speaking from that moment. Bridge v. Ward, 35 Wis. 687; Scott v. West, 63 Wis. 552; Prickett v. Muck, 74 Wis. 205; Graves v. Mitchell, 90 Wis. 314; Hall v. Hall, 98 Wis. 193, 201; Patton v. Ludington, 103 Wis. 639; Jochem v. Dutcher, 104 Wis. 611, 614. As indicated, tbe testator’s death occurred March 29, 1899, — nine years after tbe paper in question was written. When tbe court comes to construe the will, which has not yet been attempted, but has been expressly reserved, it may be ne'cessary to show what property, if any, tbe testator left at tbe time of bis death, in order to determine whether any of it passed by tbe will to tbe two daughters named. “Tbe admissibility of parol evidence to identify tbe subject-matter of a legacy or devise” is undoubted. 2 Underbill, Wills, § 911. Thus it has been held in tbe supreme court of tbe United States:

“A latent ambiguity in a will which may be removed by extrinsic evidence may arise (1) either when it names a person as tbe object of a gift, or a thing as tbe subject of it, and there are two persons or things that answer such name or description; or (2) when tbe will contains a misdescription of tbe object or subject, as where there is no such person or thing in existence, tbe person is not tbe one intended, or tbe thing does not belong to tbe testator. When a careful study of the testator’s language, applied to tbe circumstances by which be was surrounded, discloses an inadvertency or mistake in a description of persons or things in a will, wbicb can be corrected without adding to the testator’s language, and thus make a different will from that left by him, the correction should be made.” Patch v. White, 117 U. S. 210.

Such parol evidence may do away with all possible doubt. It is laid down as a legal maxim that, “where two clauses in a will are repugnant one to the other, the last in order shall prevail.” Wharton, Leg. Max. 65, No. 25. It is there said, however, that such maxim should be received with some caution, and “that two apparently contradictory clauses will, if possible, be reconciled so as to carry out the intention of the testator, and so as not to reject either; such contradiction or apparent contradiction consisting most frequently in words only, and not in intention. But where there are two clauses manifestly repugnant to each other, as two devises of the same thing to different persons, then the maxim holds good, but not without difference of opinion as to how the several devises should be made to operate.” Mr. Sehouler expresses similar views. Sehouler, Wills, § 418. Among other things, he there says that “in various instances inconsistent gifts or devises have been reconciled in construction by reading the later one as referring to a possible lapse of the former one, or as dependent upon some contingency which is deducible from the instrument taken as a whole.” It has been held in Massachusetts that “the term ‘will’ includes every kind of testamentary act taking effect from the mind of the testator, and manifested by an instrument in writing,” and hence includes an instrument executed as a will in the following terms: “It is my wish that the will that I made be destroyed, and my estate settled according to law.” Bayley v. Bailey, 5 Cush. 245. See, also, Kelleher v. Kernan, 60 Md. 440. So it has been recently held.in Michigan that a paper executed as a will, stating that it was good to a person therein named, for the amount stated, “as payment for care and attendance” in tbe testator’s last sickness, to be collected out of bis estate after bis death, provided be died a bachelor, was a will, and not a mere admission of an indebtedness. Ferris v. Neville (Mich.), 86 N. W. Rep. 960. We are here only concerned with tbe question whether tbe paper is in fact a will, and hence whether it was properly admitted to probate. The question of its construction was not determined in the trial court, and is not determined here, except that it is in the form of a will, and was properly admitted to probate as such. The taxable costs in this court are payable out of the estate.

By the Court. — The judgment of the .circuit court is affirmed.