228 Wis. 462 | Wis. | 1938
The following opinion was filed May 17, 1938 :
On July 9, 1937, Blanche Krombholz, a daughter of Rudolph Ott, alleged to be deceased, filed a petition in the county court of Lincoln county for probate of an alleged will of said Rudolph Ott, purporting to have been executed by him on the 15th day of January, 1936. The petition alleges:
“That Rudolph Ott, a resident of the town óf Tomahawk, Lincoln county, Wisconsin, died at the town of Tomahawk, Lincoln comity, Wisconsin, on the 27th day of May, 1937.
The petition indicates personal property of the value not to exceed $2,000 and real estate of the probable 'value of $5,000, annual rents and income not to exceed $100. The will, after providing for the payment of just debts, funeral expenses, etc., and the sum of $50 for the upkeep of the cemetery lot, gives, devises, and bequeaths all the rest, residue, and remainder to the daughter, Blanche Krombholz, who appears to be the only heir, “if she survives me and in the event of her death prior to my decease, then to her surviving children in equal shares.” The daughter is named as executrix without bond.
On July 9, 1937, said Blanche Krombholz also filed a petition asking for the appointment of a special administrator for the following reason:
“That there will be delay in granting letters testamentary or of administration and it is necessary that a special administrator be appointed for the reason that the estate is subject to waste and requires the immediate attention of some person to conserve it.”
This petition also alleges that Rudolph Ott died at the town of Tomahawk, in Lincoln county, on May 27, 1937. Upon said petition, an order was entered appointing the appellant as special administrator.
It appears that on April 7, 1937, a judgment was rendered against Rudolph Ott, in favor of Robert Calhoun and Florence Calhoun, in the sum of $295.06. Execution was issued thereon; also garnishment in aid of execution was begun. The attorney for the appellant herein appeared in said action as attorney for Mr. Ott and took an appeal from said judgment to the circuit court for Lincoln county. In connection with these proceedings and apparently for the purpose of defeating the garnishment proceedings in aid of execution, said attorney made an affidavit in which, among other things, he said:
“That on or about the 27th day of May, 1937, defendant [Rudolph Ott] disappeared under circumstances tending to indicate suicide and as a result thereof probate proceedings were instituted, and are pending.”
Following the disclosure that Mr. Ott had only disappeared from his place of residence, there being no evidence of his death, the attorneys for the judgment creditors, Robert and Florence Calhoun, filed a petition in the county court, in the matter of the proceedings in the estate of said
It appears to be the appellant’s contention that, because a petition was filed with the county court in which it was stated that Mr. Ott died on May 27, 1937, the court had jurisdiction to proceed with the probate of the will and with the special administration proceedings regardless of the fact of whether Mr. Ott was dead or alive. Appellant makes the further contention that the judgment creditors had no> right to intervene in the county court proceedings and question the jurisdiction of the court, even though it be conceded that there was no evidence of Mr. Ott’s death and that his disappearance had continued for only about one and one-half months prior to' instituting the proceedings in the county court. The daughter and her attorney knew when they began the proceedings in the county court that they then had no evidence of Mr. Ott s death, and that if his disappearance
“In the common case of intestacy it is clear that letters of administration must be granted to some person by the ordinary [having the power of our county court], and, though they should be granted to one not entitled by law, still the act is binding until annulled by the competent authority, because he had power to grant letters of administration .in the case. But suppose administration to be granted on the estate of a person not really dead. The act, all will admit, is totally void. . . . The case, in truth, was not one within his jurisdiction. It was not one in which he had a right to deliberate. It was not committed to' him by the law. And although one of the points occurs in all cases proper for his tribunal, yet that point cannot bring the subject within his jurisdiction.”
In Will of Rice, 150 Wis. 401, 443, 136 N. W. 956, 137 N. W. 778, the court said:
“The county court, as indicated in the cited cases, having jurisdiction only oí the estates of deceased persons in respect to administering the same, the power does not become active, in any particular instance, till the person over whose estate the authority may be asserted is actually dead. A mere allegation and adjudication in proceedings to that end does not suffice. If, notwithstanding that, it turns out that the person adjudged to be dead is in fact alive, all proceedings in respect to his estate are utterly void. The fact of death, irrespective of any adjudication respecting it, is essential. ...”
There is no occasion' to make further reference to appellant’s contentions. They are without merit. The proceedings in the county court for the prob'ate of Mr. Ott’s will and the appointment of the appellant as special administrator are void.
By the Court. — Order affirmed.
A motion for a rehearing was denied, with $25 costs, on June 25, 1938.