104 Wis. 72 | Wis. | 1899
WilUam McDermott, named as executor and also as principal beneficiary, by a petition which did not indicate in which capacity, propounded a will for probate, which was denied, the county court finding the instrument not to be the last will and testament of the deceased. Thereupon attorneys filed a notice of appeal on behalf of “ Wm. McDermott, named as executor ” in the proposed will, and served the same as directed by order of the county court, but, did not file any undertaking. The circuit court reversed-the decision of the county court, and admitted the will to-probate, from which judgment this appeal is taken.
The appellants here contend, as they did below, that the-' appeal to the circuit court was-ineffectual for want of an •undertaking, and that the circuit court was without jurisdiction by reason of sec. 4032, Stats. 1898, which provides-that the party appealing, other than, am, executor, administrator, guardian, or trustee, shall, before his appeal shall be effectual for any purpose, file an undertaking. Thompson v. Thompson, 24 Wis. 515; Drinkwine v. Eau Claire, 83 Wis. 428. It is contended by the respondent here that he, being so named in the proposed will, 'was an executor, for the reason that executors derive their existence as such, not from the order of the county court, but from the will itself. This ■ position, in ancient times, was undoubted, and the power of the executor differed but little before and after probate; indeed, he was looked upon as a creation of the testator, his powers resting upon the will as an instrument inter pamtes, and not upon authority derived from the ecclesiastical court. Schouler, Ex’rs, § 131; 1 Williams, Ex’rs (4th Am. ed.), 239, 240. The tendency of more modern decisions and statutes, ■ however, is to contemplate the executor as dependent upon the court for his official existence: Although for his appointment he looks primarily to the will, that appointment is in many authorities said to be ineffectual until the con- - firmatory action of the court is had. Mr. Schouler (Ex’rs,,'
Respondent argues that there are still many acts which one named as executor may do before issuance of letters to him which will bind the property or estate. So, also, many
It is, however, not important to consider what, if any, acts are valid and binding when done by one named executor which would not be so if done by one not so named. Eor are decisions from other states in that line of much significance upon the question before us, which is merely one of statutory construction, — What did our legislature mean in the use of the word “ executor ” in this section, where it is coupled with “ administrator,” “ trustee,” “ guardian,” etc.? It is to be observed that in the statutes imposing duties on one named in a will before he has been fully installed in the position by his letters testamentary the expression used by the legislature is, “ the person named as executor,” and in substantially all cases where the word “ executor ” is used its obvious significance is an executor confirmed by appointment and fully installed in his office. Sec. 3805, Stats. 1898,
In the light of all these considerations we cannot avoid the conclusion that the “ executor ” mentioned and favored by sec. 4032 is one who, like the administrator mentioned, in the same connection, is such in full compliance with our statutes; that not until the person nominated by the will to be executor has satisfied our statutes and the county court, and been confirmed in his office, is he entitled to appeal without undertaking. This view is necessarily fatal to the jurisdiction of the circuit court.
By the Court.— Judgment of the circuit court is reversed, and cause remanded with directions to dismiss- the appeal from the order and judgment of the county court.