104 Wis. 61 | Wis. | 1899
Lead Opinion
A motion was made by the respondent for a dismissal of the appeal because there was no proof on file of service on the clerk of the circuit court of the notice of appeal. A proper notice of appeal was found in the record certified to this court, with the usual filing thereon of the clerk of the lower court. It was urged that the statute requires a service of the appeal notice on the clerk of the circuit court where the judgment appealed from was entered, by delivering to such clerk, and leaving with him, a true copy thereof, and proof thereof, together with the original notice, to be duly certified to this court. To support such contention respondent’s counsel cited Yates v. Shepardson, 37 Wis. 315, where a notice of appeal was not delivered to or filed with the clerk of the trial court; also Eureka, S. H. Co. v. Sloteman, 67 Wis. 118, where the notice was not delivered to the clerk for the purpose of complying with the appeal statute, but was filed with him pursuant to a nunopro huno order of the trial court; and North Hudson M. B. & L. Asso. v. Childs, 86 Wis. 292, where the notice of appeal was neither directed to nor delivered to the clerk of the trial court. It will be observed that neither of such cases is similar in its facts to the one before us. Here a notice of appeal duly directed to the clerk of the trial court was delivered to him for the purpose of complying with the appeal statute, and was filed and returned by him to this court as a part of the record. Sec. 3049, Stats. 1898, provides that an appeal must be taken by serving a notice in writing on the adverse party and on the clerk of the circuit court in which the judgment or order appealed from is entered; and sec. 3050 provides that the clerk shall in all cases transmit to the supreme court the
It would require an exceedingly strict construction of the statute to reach the conclusion that there must be a notice of appeal served by copy on the attorney for the adverse party and on the clerk of the trial court, and that such notice, with proof of such service, must be filed with such clerk and by him certified to this court in order to confer jurisdiction upon it. The delivery to the proper clerk of a notice of appeal for the purpose of complying with the appeal statute, constitutes a literal compliance therewith, and the clerk’s filing thereon sufficiently proves the service. The return of the notice served and filed complies, literally, with the statute requiring the notice of appeal to be so returned. The motion to dismiss the appeal is denied.
The only error assigned on the merits of the appeal is the ■denial of payment of the expenses of administration out of the proceeds of the sale of one half of the real estate, after the expiration of the life estate of the wife of the testator. To support the decision of the trial court reliance is placed on secs. 2211, 2280, Stats. 1898. The first section provides that when a homestead shall not have been devised by the •owner it shall go to certain désignated heirs free from all claims against the estate except mortgages lawfully executed thereon and laborers’ and mechanics’ liens. The second section provides that when the homestead shall have been disposed of by will the devisee shall take the same free from all judgments and claims against the testator or
Expenses of administration constitute a charge of the highest character against the estate in which they are in-•chrred. They take precedence of debts, even of such as. grow out of the last sickness, unless otherwise provided by ■statute. Woerner, Administration, §§ 356, 362. Such expenses are a necessary incident to the carrying out of the
It follows that the will in question, properly construed,, charges the estate in remainder not devised to Phillip Madden with the payment of the legacies mentioned in the wilL and the debts of deceased and expenses of administration, and that the latter take precedence of such debts and legacies.
By the Oowri.— The judgment of the circuit court is reversed, and the cause remanded for further proceedings in accordance with this opinion.
Dissenting Opinion
I respectfully dissent from that portion of the decision in this case which denies the respondent’s motion to dismiss the appeal. It is conceded that the record.