70 Wis. 497 | Wis. | 1888
1. The certificate of acknowledgment of the mortgage appears upon its face to have been' executed on the day found by the court, and which was the same as the date of the note. Such, certificate was, at least, presumptive evidence that the note and mortgage were executed and delivered at that time. Smith v. Allis, 52 Wis. 337; Pereau v. Frederick, 17 Neb. 117. The cancellation of the stamp bears the same date. These support the finding upon this fact, and no exception is taken thereto. The mere fact that an earlier date appears at the commencement of the mortgage is immaterial, and constitutes"no variance; especially as the complaint nowhere refers to the date of the mortgage as descriptive.
2. It is said that the .plaintiff failed to prove title to the note and mortgage. He claims such title under and by virtue of the following papers, proceedings, and transfers in the record, and undisputed: April 18, 1868, the mortgagee, Joseph Schantz, made his last will and testament, wherein he gave all his property to his wife, Anna Maria Schantz, also named therein as sole executrix; subject, however, to the payment of his debts, funeral expenses, and a legacy of $500 to a daughter. June 11, 1870, Joseph Schantz died, without having surrendered or assigned the note and mortgage. November 26,1870, the will was filed with the probate judge. May 8,1871, the requisite petition of Adam Schantz for the probate thereof was filed in the probate court. Thereupon, and on May 8, 1871, it was in effect ordered by said probate judge that proof of said instrument, and all other matters pertaining to the granting of administration of said estate, be heard before him May
The contention is that, as the proof fails to shovraffirm-atively that the notice for the hearing of the probate of the will was published for three successive weeks, the court was without jurisdiction, and hence the subsequent order of assignment void.
Most of the cases relied upon involved the title to real estate. In some, it affirmatively appeared that the notice, was necessarily short. Here, the question relates solely to the transfer of the note and mortgage constituting a part of the estate of the deceased. The first publication was May 9th, and the hearing was not until May 31st; so there were twenty-two days, exclusive of the day of the first publication. The order directed such publication for three successive weeks. The time allowed was sufficient. The order or judgment of probate recited that the notice was given as required. Every county court is a court of record. Sec. 2448, R. S.; Chase v. Whiting, 30 Wis. 547. The judgment of probate is entitled to faith and credit so far as it relates to the question here involved, unless it was made without jurisdiction. True, we are to look at the affidavit of publication. In that we find that through some inadvertence the number of “successive weeks” is left blank. Since there were three such weeks intervening, we would natu
There is another reason why this defendant should not, after the lapse of fifteen years, be allowed to question the validity of such transfer. The note and mortgage were included in the inventory, and appraised as a part of the assets of the estate. They were assigned to the widow by the order of the county court. Within four months after the making of that order, the defendant petitioned that court for the allowance of certain claims against the estate, and therein asserted that “ he did not know until quite recently
Other objections to such assignment relate to matters which in no way concern the defendant as mortgagor and debtor to the estate, and that is the only capacity in which he here appears.- Besides, such other objections go merely to the regularity of the proceedings, and they are not open to attack collaterally.
3. The mere fact that the defendant’s father casually borrowed of him twenty dollars, four years before his death, is not such evidence of the payment of that amount upon the note and mortgage as will justify us in disturbing the findings of the trial court. No do we feel called upon by the evidence to disturb such findings merely because the court did not allow the defendant twenty-five cents more a day for his services.
4. We think the court properly refused to allow, as payment upon the note and mortgage, the services of the defendant in helping to take care of his father in his last sickness. There was no proof to sustain it as a payment.
5. We cannot disturb the judgment because the court did not find that there was a larger amount due upon the note and mortgage. It was a question of fact for the trial court,, and we accept its findings as sustained by the evidence.
6. We cannot disturb the judgment for the disallowance of attorney’s and solicitor's fees. Each party claimed more than he was entitled to. It is a case in equity. In all such “equitable actions, costs may be allowed or not to any party, in the discretion of the court.” Subd. 7, sec. 2918, R. S.; Mowry v. First Nat. Bank, 66 Wis. 539, 550. We find no warrant for saying that there was any abuse of such discretion.
By the Court.— The judgment of the circuit court is affirmed on both appeals.