Reynolds v. Schmidt

20 Wis. 374 | Wis. | 1866

Cole, J.

The simple question in this case is, whether the proceedings of the probate court divested the heirs of Thomas Carroll of the title to the real estate of which he died seized. It is claimed that they did not, for several reasons. In the first place, it is said that the petition of the administrator for license to sell the real estate of the deceased did not contain the special facts necessary to authorize the court to grant the license, because it failed to set forth the amount of the “ personal estate that has come to his hands,” as required by section 2, chap. 65, R. S. 1849. There was an enumeration of the articles of personal property, but the value of these articles is not stated. Does this defect in the petition render the proceedings void? The language of the petition upon this point is a little ambiguous. It is as follows: “ And your petitioner further represents that no personal estate of said deceased has come to his hands, except what was brought to him by the widow of said deceased, now the wife of your petitioner, to-wit: 1 yoke of oxen,” &c., giving a list of the personal property. Now it is said, in answer to the objection just suggested, that this shows that there was really no available personal estate in the administrator’s hands, but that the enumerated property belonged to the widow or had been assigned her by the probate court under the statute, and therefore was not assets. The language of the petition is perhaps susceptible of this construction, although it does not seem to me to be the natural one to place upon it. Assuming then that this personal property belonged to the estate of Thomas Carroll, does it follow that the proceedings are void, "because its value was not stated in the petition ? We think not, but that this defect in the petition for license, if otherwise valid, was cured by section 52 of this chapter. That section provides that “in case of an action relating to any real estate sold by an executor, administrator or guardian, in which an heir or other person claiming under the deceased, or in which the ward or any person claiming under him, shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear, 1. That the executor, administrator or guardian was licensed to make the sale by the probate court having jurisdiction : 2. That he gave a bond, which was approved by the judge of probate, in case a bond was required upon granting a license: 3. That he took the oath prescribed in this chapter : 4. That he gave notice of the time and place of sale as in this chapter prescribed: and 5. That the premises were sold accordingly, and the sale confirmed by the court, and that they are held by one who pruchased them in good faith.” Now, if any force or effect is given this section, it must effectually obviate the objection taken to the petition, that it failed to state the value of the personal property which came to the hands of the administrator. Eor it expressly declares that the sale shall not be avoided on account of any irregularity in the proceedings, provided the five specified facts appear. This is equivalent to saying that the sale shall not be avoided when it appears that those things exist, even though errors and irregularities should be discovered in the proceedings. The defect in the petition, of omitting to state the value of the personal property in the hands of the administrator, is not such an irregularity as avoids the sale. Eor when the above named material and fundamental facts or requirements exist or appear to have been complied with, minor irregularities are to be disregarded. This is the plain and obvious meaning of the statute.

But it is said, when this section provides that a sale shall not be avoided on account of any irregularity in the proceedings, if it appears that the administrator was licensed to make the sale by “the probate court having jurisdiction,” we must not understand the probate court of the county where the deceased resided at the time of his death, and within whose jurisdiction the land sold is situated, but that the state of facts was such as to give the probate court jurisdiction or authority to grant the license in the particular case ; in other words, that all the special facts were stated in the petition and made to appear to the probate court, which were essential and necessary to give the court the right to grant the license for the sale which was made. This, however, is giving the statute a construction quite too narrow and restricted. It is in effect saying that if there was any defect in the matters set forth in the petition, any irregularity in the proceedings before granting the license, this should render the sale invalid. According to this view, all facts calling into exercise the power of the court became jurisdictional facts, and must appear upon the record. And when the validity of a sale made is questioned in a collateral suit, the court must review the whole proceedings in the probate court as upon a direct appeal, and declare them void when not legitimate and regular. Are we to consider the matter in the same light as though the question was before us, onvan appeal, of granting a license on this particular petition ? Had those interested in the estate taken an appeal from the order of the probate court granting the license, it might be competent to inquire whether the petition was defective for not stating the value of the personal property. It seems to us too late now to go into that matter, particularly in view of a statute which says that the sale shall not be avoided when certain facts exist. And by “ the probate court having jurisdiction” is obviously meant the probate court of the county where the deceased resided at the time of his death, and which had jurisdiction of the estate. To give the statute any other construction, it seems to us, irould be nullifying its provisions. The first objection taken to the proceedings in the probate court must therefore be overruled. And what we have said upon this point is equally applicable to the third and fourth points of the brief of counsel for the plaintiff in error.

Again, it is said that the order of license could be made only upon proof that the order to show cause had been published as required by law, and that the record did not show that any such publication was made. This objection is not sustained by the record. There is an affidavit showing a proper publication of the notice of the time and place where the application for a license would be heard. This affidavit, however, was made by the “proprietor” of the newspaper, and it is insisted that it could only be made by the “printer” or “foreman” of such printer. "We think the affidavit might be made by the proprietor, and that the decision of Hill v. Hoover, 5 Wis., 371, is inapplicable to this case.

The last objection is, that the sale is void because the administrator did not give a bond as required by sections 8 and 52. It does not appear that any bond was required to be given under section 8, the probate court doubtless considering the bond already given by the administrator as sufficient.

The conclusion at which we have arrived is, that the judgment of the circuit court is correct, and must be affirmed.

By the Court. — Judgment affirmed.