Opinion
October 11, 1948. —
November 16, 1948.
APPEAL from a judgment and order of the county court of Racine county: J. ALLAN SIMPSON, Judge. Reversed.
Francis H. Wendt and Kenneth L. Greenquist, both of Racine, for the appellants.
George Gratz, attorney, and Robert E. Gratz of counsel, both of Milwaukee, for the respondent.
This is an appeal from the whole of a judgment dated January 3, 1948, which denied to probate a certain instrument as and for the last will and testament of Mrs. Agnes (A. C.) Baksic, and from that order entered thereafter denying the motion to reopen the trial of the contest of the will.
On January 4, 1947, Mrs. Agnes (A. C.) Baksic had a will drawn by her attorney, A. W. Ponath. This will made specific bequests to certain individuals and gave the residue of her property to her two sisters, Anna Elias Gratz and Stephanie Elias Kunzman, in equal shares. Mrs. Baksic left one dollar to her husband, Ambrose Baksic. This will was executed in the Hotel Appleton in Appleton, Wisconsin, at about three o'clock in the afternoon, and was witnessed by Mrs. Bessie Brehm and A. W. Ponath, both of Appleton, Wisconsin, under the proper attestation clause.
Mrs. A. C. Baksic died in the city of Appleton on January 6, 1947, and Emma Everts, one of the specific legatees under the will, filed a petition for probate in the county court of Racine county. Due notice was given and on March 19, 1947, Ambrose C. Baksic, widower of the deceased, filed objections to the allowance and probate of the will upon the grounds that the same was not duly executed as provided by law and upon the further grounds of undue influence and insufficient mental capacity. The trial was held before the court on May 28, 1947. The proponent was represented by A. W. Ponath who was also a witness to the will. Other facts will be referred to in the opinion.
In this case the will of Mrs. Baksic was properly executed by the testatrix and by the witnesses but was denied probate because A. W. Ponath, one of the subscribing witnesses, did not testify. The evidence shows that Ponath was attorney for the proponent and that he refused to testify and was not compelled to do so.
The probate of a will is a matter of public interest and in this case public policy dictated that the trial court should take positive action in bringing the proper evidence before the court in order to make a determination of the issue presented. Guardianship of Reeve (1922), 176 Wis. 579, 186 N.W. 736; Estate of Staab (1918), 166 Wis. 587, 166 N.W. 326; Will of Rice (1912), 150 Wis. 401, 136 N.W. 956, 137 N.W. 778; Will of Dardis (1908), 135 Wis. 457, 115 N.W. 332.
The controversy in this case has not been fully tried and in accordance with sec., 251.09, Stats., the court orders a new trial be held and the testimony of A. W. Ponath be taken so that the real controversy herein will be fully tried and determined with finality. Will of Burns (1933), 210 Wis. 499, 246 N.W. 704.
By the Court. — Judgment and order reversed, and cause remanded for further proceedings in accordance with this opinion.
BROADFOOT, J., took no part.