59 Wis. 110 | Wis. | 1883
The learned counsel for the appellant argues that Joseph Marx, the son of the insane heir at law of the deceased testator, had no authority to petition for leave for his insane mother to appeal from the probate of said will. It is not denied that if Margaret Marx had been sane she could have petitioned for the order, and if she excused her delay in not appealing within the sixty days allowed by sec. 4031, R, S., the court could, in its discretion, have allowed
We see no objection to the proceeding to obtain the order in this case. It follows the rule prescribed by the statute for commencing civil actions by insane persons. Sec. 2616, E. S., prescribes the manner of commencing actions by insane persons, and it provides that “ a guardian for the action may be appointed upon the application of any party thereto, or of any relative or friend of such insane party, after notice,” etc.
Ordinarily, it is true, the insane party would be represented by his general guardian; but it is very clear that he cannot be so represented when such guardian is the adverse party in the action or litigation, as is evidently the case upon this appeal. The guardian is himself the opposite party throughout this case, and appeals to this court from the order allowing his ward to appeal from the probate of a will
We are unable to appreciate the force of the suggestion that respondent was guilty of any unreasonable delay in making her application for leave to' appeal because her general guardian, whose duty it was to protect the rights of his insane ward, had declined to enter an appeal as such guardian against himself as executor and residuary legatee. His interests in the litigation were clearly so antagonistic as to preclude the idea that the rights of his ward could be properly trusted to his action.
Upon this appeal we are not called upon to look into the merits of the controversy. It is enough if the petition alleges facts which, if proved, would avoid the will.
By the Oourt.-^- The order of the-circuit- court is affirmed.