Nelson v. Clongland

15 Wis. 392 | Wis. | 1862

By the Oourt,

Oole, J.

We are not able to understand upon what ground the appeal in this case was dismissed. Abraham Nelson is a legatee under the provisions of the nun-cupative will mentioned in his petition to the county court. It is likewise stated in that petition who is the heir at law of the deceased, and of course whose interests were adverse to those claiming under the will. If the will was not admitted to probate, the estate, under our statute, descended to the father. The father, then, was the party adversely interested in the estate. He was the obligee in the appeal bond. It was made payable to him, and was for his benefit. What more was necessary ? And who was “ the adverse party,” within the meaning of our statute, unless.it were the heir at law to whom the estate descended in the event the nuncupa-tive will were defeated ? The appeal bond, then, we think, was sufficient and ran to the right party.

But it is objected that the notice of appeal is defective for not stating the “ reasons for such appeal,” and for not being directed to the proper party. The reason for the appeal is, in effect, that the evidence given before the county court showed the due execution of the will, probate of which was denied. We cannot well see how a party could be more specific in stating his reasons in such a case. It is nothing more than saying that the county judge decided contrary to the evidence — that the proof showed that a valid will had been made, while the county court decided otherwise, and that no such will had been made. The order of the county court denying the probate of the will does not state in what respect the proof of the execution of the will was deemed defective and insufficient. How then could the appealing party state more distinctly or specifically his reasons for the appeal, under such circumstances, than to say that the proof showed the due and proper execution of the will, probate of which was refused.

Another objection is, that the notice of appeal is not dito some party in interest, &c. The notice of appeal ^as fRe¿[ wRh the county court, and was directed to the judge of that court and to all whom it might concern. The order, with the notice of appeal, was served upon the heir at law and the special administrator. This, we think, was all that was necessary.

■ The order of the circuit court dismissing the appeal must he reversed, and the cause remanded to that court for further proceedings according to law.