171 Wis. 184 | Wis. | 1920
It appeared that John Bagley, upon whose behalf the petition was made, had not been heard from since the death of Alice McGinty, and there is nothing to indicate that John Bagley knew of the will prior to his disappearance or that he has learned of it since that time. The circuit court’s decision in denying the petition is as follows:
“The authority to make this petition for the relief asked for as set forth in the petition is that ‘John Bagley left all of his matters to the care of the said firm of Fisher & Cashin as his attorneys.’
“Mr. Redfield testified that he last saw John Bagley the latter part of May, 1918; that John Bagley then knew of his uncle’s death and wanted Mr. Redfield to go with him to Sioux Falls. That he talked with Mr. Redfield about his uncle’s death and his inheritance from him. That they arranged to go to Sioux Falls together. That John Bagley said that he wanted him to look after all of his affairs. That the only affairs he was talking about was his property and his inheritance from his uncle, and the Portage county litigation over the money evidenced by the certificates of deposit given by the Citizens National Bank of Stevens Point in the joint name of Kate Bagley and Alice McGinty.
“This can only mean that Bagley meant that they, his attorneys, should take care of his interests as they were. It constitutes no authority to his attorneys to commence this proceeding.
“Mr. Bagley may now be dead. The presumption is, however, that he is alive. If he should return he might approve and ratify what has been done, or he might not.*186 The executor of the will and the residuary under the will should not be subjected to the hazard of such a venture. That the attorneys felt the moral obligation to make the attempt justifies them, perhaps, in commencing as they have; but that consideration will not warrant the court in permitting the appeal to be taken.
“Admitting the authority of the attorneys for the purpose of considering the mental capacity of the testatrix:
“It is held that the showing of the executrix is such that it is extremely doubtful that this court would, in the exercise of its discretion, be sustained in holding that the appeal should be allowed under the statute on the ground of the alleged mental incapacity of Alice McGinty.”
The application was denied.
The application was made under the provision of sec. 4035, Stats.:
“If any person aggrieved by any act of the county court or commissioners to examine claims shall, from any cause without fault on his part, h¡ave omitted to take his appeal according to law the circuit court of the same county may, if it shall appear that justice requires a revision, of the case, on the petition of the party aggrieved and upon such terms and within such time as it shall deem reasonable, allow an appeal. . .
An application to the circuit court under the provisions of this section is addressed to the sound discretion of the court, and this court will not reverse the order of the circuit court denying such appeal unless it appears there has been an abuse of discretion. Gustafson v. Whitney Bros. Co. 154 Wis. 8, 141 N. W. 1008. See, also, Deering H. Co. v. Johnson, 108 Wis. 275, 84 N. W. 426; Perry v. Scaife, 126 Wis. 405, 105 N. W. 920; McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489; O’Hara’s Will, 127 Wis. 258, 106 N. W. 848.
We have carefully examined the record and papers upon which the. application was made, and are of the opinion that the circuit court was right, and that the evidence not only sustains'but warrants the determination that justice does
By the Court. — Order affirmed.
