129 Wis. 311 | Wis. | 1906
1. The first error assigned is the refusal of the court to dismiss the appeal for want of prosecution. Sec. 4038, Stats. 1898, provides that, if the appellant shall fail to prosecute his appeal with reasonable diligence, the circuit court, on motion of any person interested, shall dismiss the appeal or affirm the judgment or act appealed from, as such court shall deem just. The question presented here under this assignment of error is whether the court below abused its discretion in refusing to dismiss the appeal. It appears from the record that the appeal was pending for about five years before the motion to dismiss was made, but it also appears from the record and affidavits used on the motion for dismissal that substantial grounds existed for the delay. The time during which the appeal was pending was largely consumed in the litigation of other matters, notably the contest over the adoption proceedings of Lafayette B. Parsons, respondent, which contest was litigated through the county and circuit courts and finally determined in this court. It was quite reasonable that the litigation over the adoption of respondent should be finally settled before proceeding with the appeal. There was also litigation over the guardianship of Cynthia A. Parsons, the widow, and a contest over her will; also other litigation and negotiations for settlement, all of which consumed considerable time, as appears from the record, and which was embraced within the period of time now complained of. There was also destruction of papers and other matters referred to by the circuit judge in his opinion as tending to show that there was no unreasonable delay in
2. It is further claimed by counsel for appellant that the power of the county court to vacate the order or judgment'in question was limited to one year after knowledge of the entry of such judgment or order, and several cases are cited upon this proposition. The general principle of law, as laid down in the authorities cited, does not apply where the order or judgment is attacked on the ground of want of jurisdiction or fraud. The court below found there was both want of jurisdiction and fraud, hence the one-year limitation did not apply. We need not stop to consider whether or not the petition for the jrobate of the will of Henry D. Parsons as a lost will under the statute was sufficient to vest the county court with jurisdiction, because we are satisfied that the petition presented .to the county court asking that the order probating the will -be vacated and set aside made a case which entitled the petitioner to relief upon the ground of fraud, and that the landing of fraud is supported by the evidence. The petition showed the execution of the will of ITenry D. Parsons June 15, 1876, the birth of respondent July 10, 1876, and his adoption on the 10th day of November, 1887; the destruction of the will April 5, 1887, with the knowledge of Henry D. Parsons, and the survival of said Parsons for a period of three years after the destruction of the will; his failure to make another will, although expressing his intention so to do, and his death on the 22d day of July, 1890; that at the time of hearing on petition to probate the will respondent was a minor about fourteen years of age; that both
“Fraud, in law, is of two kinds — actual and constructive. The former arises from deception practiced by means of the misrepresentation or concealment of a material fact; the latter, from a rule of public policy, or the confidential or fidu*318 ciary relation which one of the parties affected, by the fraud sustained towards the other. It is a constituent of actual fraud that the party alleged to have been defrauded was deceived. Lefler v. Field, 52 N.Y. 621. No positive dishonesty of purpose is required to show constructive fraud.”
Within about two months after the minor attained his majority he promptly made application to the county court to have the order probating the will vacated, and we think the showing made was ample to warrant the court in taking jurisdiction and vacating the order, although long after expiration of one^year from the. time of its entry. Estate of Leavens, 65 Wis. 440, 447, 27 N. W. 324; Beem, v. Kimberly, 72 Wis. 343, 39 N. W. 542; In re Fisher, 15 Wis. 511; Estate of O’Neill, 90 Wis. 480, 63 N. W. 1042; Clyce v. Anderson, 49 Mo. 37, 41; Mills v. Smith, 19 N. Y. Supp. 854; Ferguson v. Lowery, 54 Ala. 510; In re Steele, 65 Ill. 322; Bond v. Lockwood, 33 Ill. 212; 8 Am. & Eng. Ency. of Law (1st ed.) 647, 648. The point is made by counsel for appellant that fraud is not alleged, but the facts constituting a constructive fraud are alleged, and this is sufficient. Eraud is a conclusion of law. Crowley v. Hicks, 98 Wis. 566, 74 N. W. 348.
3. Coming to the merits of the case, the question is whether the court below was right in vacating the order of the county court admitting the will to probate and setting aside the order assigning the real estate to the widow, Cynthia A. Parsons. Although some evidence was offered in the court below, the facts set up in the petition are undisputed and found by the court. The first question arising is whether upon these undisputed facts the alleged destroyed will could be admitted to probate under the statute. 7 It is argued that sec. 3791, Stats. 1898, contains no limitation, and provides that, whenever any will of real estate or personal property shall be lost or destroyed by accident or design, the county -court shall have power to take proof of the execution and validity of such
4. It is further claimed that the court erred in allowing the petition to be amended so as to set up the claim of petitioner as being an after-born child, and asking that the order assigning the real estate of Henry H. Parsons to Cynthia A. Parsons be vacated and set aside. The original petition gave the county court jurisdiction of these matters; hence it was proper to allow the amendment, or the court could have granted the relief without the amendment. Brook v. Chappell, 34 Wis. 405. It is also argued that no appeal was taken from the order assigning the real estate. That was clearly unnecessary. The appeal from the judgment refusing to set
By the Court. — The judgment of the court below is affirmed, and the cause remanded.for further proceedings according to law.