119 Wis. 352 | Wis. | 1903
Numerous technical objections are raised to the proceedings. The testator died September 13, 1872,, leaving a will in which he devised his homestead to his widow, Johanna. On the same day Johanna filed the will in the county court Two and a half months afterwards she petitioned the county court to have the will proved and admitted to probate. At the time the testator died he and his wife,, Johanna, were living upon the premises so devised; and she continued to live thereon, for a time as a widow, and subsequently with her second husband, until October 31, 1882, when she joined with her husband in conveying the same by warranty deed with full covenants to the defendant, and ever since that time the defendant has been in such possession.
1. It is claimed that the defendant has no interest in the proceedings nor standing in court. A will is a muniment of title, but in this state and some others, in order to “be effectual to pass either real or personal estate,” it must be “duly provéd and allowed in the county court.” Sec. 2294, Stats. 1898. When so admitted to probate, it relates back to the-time of the death of the testator, and is to be treated as speaking from that moment. Flood v. Kerwin, 113 Wis. 680, 89 N. W. 845, and cases there cited. There is no ground for-claiming that the failure of the county court to act upon the-petition of the widow, filed November 30, 1872, is a bar to the action taken in 1899. “A will devising lands may be admitted to probate at any time after the death of the testator.”' Haddock v. B. & M. R. R. 146 Mass. 155, 160, 15 N. E. 495. In that case the will was not admitted to probate until more than sixty years after the death of the testator. That-case followed a former case, wherein it was said that, “if a will'can be found, it may be proved in the probate office at. any time, in order to establish a title to real estate.” Shumway v. Holbrook, 1 Pick. 114, 117. So it has been held in that state that “whoever has a right to offer a will in- evidence, or to make title under it, may insist on having it
2. Error is assigned because the court refused to dismiss the appeal from the order and judgment of the county court denying the defendant’s application for the probate of the will. The statutes gave the defendant sixty days within which to appeal from such order and judgment. Secs. 4031-4033, Stats. 1898. It is conceded that the requisite notice was given, and the requisite undertaking was filed, and the order of the county court allowing the appeal was made within the time thus prescribed, and on or before December 1, 1899. The only objection is that the appeal papers and record were not filed in the circuit court until March 1, 1900. The last section of the statute cited required the county judge within twenty days after the appeal was taken to “file in the circuit court a certified copy of the record and proceedings appealed from, together with the notice of appeal and undertaking, and proof of service of the notice of appeal on the adverse party, according to the order of the county court.” Sec. 4033, Stats. 1898. Should the appeal have been dismissed merely because the records and papers were not transmitted to the circuit court within the time required by that section ? That court certainly had jurisdiction of the case by virtue of the appeal taken. Congregation v. Hellstern, 105 Wis. 632, 81 N. W. 988. The statute expressly authorized that court, in its discretion, and for good cause shown, and upon such terms as might be just, to allow such records and papers to be so transmitted to the circuit court “after the time limited”
3. Error is assigned because evidence was admitted to prove that by mistake the lands described in the will were in fact located in section 22 instead of section 21, as stated in the will. The description in the will of the lands so devised to the wife is as follows:
“A part of the southwest quarter bounded northeast by the railroad of the Milwaukee & St. Paul Co., west by Hapman and Harwood, being in section 21, town 7, range 21, containing 8 acres of land, being situated in the county of Milwaukee and state of Wisconsin.”
The evidence showed, and the court found, in effect, that there were no lands so bounded in section 21, but that there were lands so bounded in section 22, and that the same were owned and occupied by the testator as his homestead at the time of his death; that the testator never owned or occupied any lands in section 21; and that there were no lands in that section which were bounded on the northeast by the railroad of the Milwaukee & St. Paul Company, and on the west by lands owned by Hapman and Harwood. Of course, it is incompetent for a court to reform a will by changing its lan
4. It is strenuously contended that the findings of the court to the effect that the will was duly executed, and that the testator was at the time of sound mind and free from undue influence, are contrary to the clear preponderance of the evidence. The will purports to have been executed twenty-nine years before the trial. The man who drew it (Louis Hildebrand) was a justice of the peace when he drew the will, and was eighty years of age at the time of the trial. He testified to the effect that he knew the testator, and remembered having drawn a will at his house; that his recollection in respect to the will was pretty ix>or; that the will shown him was in his handwriting, and that he signed as a subscribing witness ; that he could not tell at whose request he drew the will; that he went to the house at the request of the testator’s wife; that the testator was sick at the time and said nothing; that he drew the will, and then read it to> the testator, and explained it to him, and that the testator approved of it by bowing his head; that in his opinion the testator knew the business transacted; that he did not remember exactly what took place, except as he remembered his practice; that the writing was correct in every respect; that the attestation clause was correct, and states the facts that took place there at that time; that his daughter and her intended husband were also subscribing witnesses to the will; that he got the contents of the will from the testator’s wife; that the testator was sick, and said nothing, and was an habitual drunkard. If there was no other evidence as to the execution of the will except what was remembered and testified to by Mr. Hildebrand, then there would be much force in the claim that the facts bring the case wdthin the ruling of this court in Will of Downing,
By the Court. — Tbe judgment of tbe superior court of Milwaukee county is affirmed.