Ford v. Ford

80 Wis. 565 | Wis. | 1891

Lyon, .J.

The order of the county court of February 5, 1890, cut off all allowances to the family of the testator after July 18, 1889. The judgment and order of the circuit court, from which this appeal was taken, reverses such order, and continues the allowance given by the order of June 1, 1886, until August 10,1889, that being the time the third petition to vacate the last-mentioned order was presented to the county court. The effect of this is to entitle Mrs. Ford to receive from the estate $500, being the instalment due August 1, 1889, under the order of June 1, 1886, to which she would not be entitled were the order of February 5, 1890, allowed to stand. Under the decision of this court in Balter v. Baher, 51 Wis. 538, it was error for the county court to give to its order a retroactive effect. The most it could properly do was to stop allowances after August 10, 1889, when the petition in that behalf was presented to it. The judgment of the circuit court corrects this error.

The only other effect of the order of the circuit court of which the executor complains is that it gives Marcus an allowance out of the estate for his maintenance of $600 per annum. There can be no legal objection to an allowance for that purpose, for the estate is solvent and is yet in progress of settlement. 'Hence the allowance is authorized by sec. 3935, E. S. Neither can it be justly claimed that such allowance is too large. The estate is quite ample, and the expense of giving Marcus a proper education will be considerable for some time to come, besides the necessary cost of his maintenance over and above the expense of his education. Under all the circumstances, the allowance seems quite reasonable, and no good reason appears why this court should now. interfere with it. Moreover, the amount of the allowance is a matter within the sound, discretion of the court, and the order therefor may be vacated or changed by the county court at any time hereafter for causes arising since it was made.

' By the Court.— The order and judgment of the circuit court must be affirmed. The taxable costs of the executor, and of Mrs. Ford- and Marous, on this appeal, will be paid out of the estate. The executor will be allowed, in the taxation of his disbursements for printing the abstract of the case, for only one hundred pages.

Note by Lyon, J. Since writing the above opinion our attention has been called to the fact that the appeal is not from the whole of the order and judgment of the circuit court A further examination shows that the appeal is from specific paragraphs therein, and seems to cover the whole of it except the portion which cuts off the allowance to Mrs. Ford after August 10,1889. Of course, the affirmance of such order and judgment relates to and affects only those portions thereof which were thus appealed.