Opinion
No. 197.
Argued March 31, 1970. —
Decided April 28, 1970.
APPEAL from an order of the county court of Lafayette county: KENT C. HOUCK, County Judge of Richland county, Presiding. Dismissed.
For the appellant there was a brief and oral argument by Gilbert F. Barnard of Darlington.
For the respondent Clara Geach there was a brief and oral argument by Ervin W. Johnson of Darlington.
For the respondent Russell Hinkins there was a brief by McDaniel, Reinoehl Belanger of Darlington, and oral argument by D. F. Reinoehl.
Testatrix, Mabel Hinkins Hillery, died on October 3, 1967. In her last will and testament dated September 12, 1963, she named her sister, Clara Geach, as executrix of her estate. In addition, the will provided for the distribution of her estate in proportionate shares, including:
"To: Clara Hinkins Geach, my sister a four-twenty-fourth (4/24) part
". . .
"To: Russell Hinkins, my brother a four-twenty-fourth (4/24) part
". . .
"To: Harold Hinkins and Florence Hinkins Wright, together in equal shares a two-twenty-fourth (2/24) part
". . .
"To: Ardeth [sic] Hinkins McCarville and Dwaine Hinkins, together in equal shares a two-twenty-fourth (2/24) part
". . . .
The will also contained the following provision:
"I request that my brother, Russell Hinkins have first chance to purchase my eighty acres of land at the appraised value."
On November 16, 1967, an order admitting the will to probate and appointing Clara Geach executrix and Russell Hinkins administrator with will annexed was entered by the trial court.
At the same time, two appraisers were appointed from a list kept by the county court to appraise the property of the deceased. Subsequently, a third appraiser was appointed to appraise deceased's property in Dane county.
On March 27, 1968, Russell Hinkins resigned as administrator with will annexed. No inventory or accounting of funds or property were filed by him during the period he served as administrator.
On April 3, 1968, Russell Hinkins served notice on Clara Geach, executrix, of his election to purchase the 80 acres for the alleged appraised price of $20,000.
Thereafter, on May 4, 1968, he filed a petition with the court reciting that the 80 acres had been appraised at $250 per acre for a total of $20,000, and requesting that the court issue an order to show cause.
On May 9, 1968, the court issued an order to the executrix to show cause on June 11, 1968:
"1. Why the executrix should not be ordered to file the inventory and appraisement forthwith;
"2. Why the executrix should not be ordered to convey to petitioner said eighty acres, . . . upon his paying into the estate the sum of Twenty Thousand Dollars ($20,000.00), and in case of her failure so to convey, why this court should not assign said eighty acres to petitioner upon payment therefor."
The court further ordered that notice be given of this hearing by publication and by mailing a copy of the order and notice to every interested person. All named heirs were thus notified by mail on May 9, 1968.
On May 27, 1968, approximately three weeks after Russell Hinkins had procured the order to show cause, the executrix signed a general inventory and the appraisers signed the appraisal and their oaths. The land was appraised at $250 per acre. The inventory was subsequently filed on June 6, 1968. The date of the hearing on the order to show cause was thereafter changed from June 11, 1968, to June 21, 1968.
Prior to this date a motion was made by an interested heir, Dwaine Hinkins, for dismissal of the order to show cause because it was issued prematurely on May 9, 1968, since no inventory or appraisal had been made until May 27, 1968. Dwaine Hinkins also moved for an order requiring reappraisal of assets and for an order requiring Russell Hinkins to file an inventory and accounting of the assets he managed during the period he served as administrator with will annexed.
Dwaine Hinkins' motion was supported by an affidavit alleging gross deficiency in appraised price and alleging that the executrix had received offers to purchase from third parties at $375 per acre a month prior to making and filing the inventory.
These motions were also scheduled for hearing on June 21, 1968. Notice of Dwaine Hinkins' motion was not given to heirs or other interested parties.
At the hearing on the order to show cause (on the petition of Russell Hinkins) and on Dwaine Hinkins' motion, the parties appearing entered into a stipulation dismissing the order to show cause and Dwaine's motion and agreeing that an amended inventory be filed showing an appraised price of $325 per acre. It was further stipulated and agreed:
". . . that upon the filing of the amended appraisal and upon approval by the court and the appraisers, that the personal representative, executrix, in this estate, may apply to the court for an order authorizing conveyance of said property to the said Russell Hinkins in conformity with the provisions of the Last Will and Testament which has heretofore been admitted to probate upon tendering purchase price at said amended figure."
The stipulation further provided that all persons not appearing were in default.
The appellant, Ardith McCarville, did not appear at this hearing.
The stipulation was approved by the court.
On August 27, 1968, the executrix petitioned the court for authority to sell the real estate to Russell Hinkins. An amended inventory was not filed until March 3, 1969.
On October 3, 1968, Ardith McCarville, an heir, filed a motion and notice of motion for an order vacating and setting aside the inventory and appraisal; for an order appointing a special appraiser under ch. 72, Stats.; an order for appraisal of lands under ch. 316; and for an order declaring that Russell Hinkins had forfeited his right to purchase the land under the terms of the will because he allegedly violated his fiduciary trust while acting as administrator with will annexed.
Hearing was ordered on this motion of Ardith McCarville. The hearing on the August 27, 1968, petition to sell the 80 acres of real estate was continued until further order of the court.
Following the hearing on the McCarville motion, held on April 9, 1969, that motion was denied by the court.
Ardith McCarville appeals.
The order which is before us is not an appealable one, and therefore the appeal must be dismissed. Even though the issue of the appealability of this order was not raised by the parties, this court has the duty to examine the question on its own motion. If the matter in controversy is not appealable, then this court has no subject matter jurisdiction over the appeal.
See Dombrowski v. Tomasino (1964), 24 Wis.2d 16, 127 N.W.2d 786; Lentz v. Northwestern National Casualty Co. (1963), 19 Wis.2d 569, 120 N.W.2d 722; Yaeger v. Fenske (1962), 15 Wis.2d 572, 113 N.W.2d 411.
See Estate of Stoeber (1967), 36 Wis.2d 448, 451, 153 N.W.2d 599, citing Walther, Appellate Practice, p. 1.
The order appealed from in this case denied appellant's motion seeking (a) an order appointing a special appraiser under the provisions of ch. 72, Stats.; (b) an order of appraisal of lands under ch. 316; (c) an order vacating and setting aside the inventory and appraisal previously filed; (d) an order directing the executrix to make and file an amended inventory and reappraisal of assets; and (e) an order declaring that Russell Hinkins forfeited his rights to purchase the 80 acres of land because of his alleged violation of the fiduciary trust while acting as administrator with will annexed.
This order is not a "final order" within a special proceeding under sec. 274.33(2), Stats., and therefore it is not appealable. Sec. 274.33 governs the appealability of orders of a court to this court. Matters in probate are special proceedings. When determining appealability from a probate court, sub. (2) of the above statute controls, and provides that an order may be appealed to this court when it is:
Estate of Stoeber, supra, footnote 2, at page 452.
"(2) A final order affecting a substantial right:
"(a) Made in special proceedings, without regard to whether the proceedings involve new or old rights, remedies or proceedings and whether or not the right to appeal is given by the statutes which created the right, remedy or proceedings, or
"(b) Made upon a summary application in an action after judgment." (Emphasis added.)
In Estate of Stoeber this court recently quoted the definition of a final order in a special proceeding set forth in Kingston v. Kingston, as follows:
Supra, footnote 2, at page 453. See also Estate of Keske (1966), 33 Wis.2d 64, 68, 146 N.W.2d 450.
(1905), 124 Wis. 263, 264, 102 N.W. 577.
"`A final order in a special proceeding, within the meaning of this statute, is one which determines and disposes finally of the proceeding — one which, so long as it stands, precludes any further steps therein. It bears the same relation to the proceeding in which it is entered as the final judgment bears to an action.'"
In addition, this court, in the Stoeber Case, quoted the following passage from the case of Herman Andrae Electrical Co. v. Packard Plaza:
Estate of Stoeber, supra, footnote 2, at page 452.
(1962), 16 Wis.2d 44, 48, 113 N.W.2d 567.
"`This court has stated that the test to determine whether an order is a "final order" is its effect on the rights of the parties. If an order closes the matter and precludes further hearing and investigation it is final; but an order which does not completely dispose of the subject matter and settle the rights of the parties is not final. . . . '" (Citations omitted and emphasis added.)
Applying these standards to the instant order it is clear that this order is not appealable, even though the order affects substantial rights in a special proceeding. It is not appealable because it is not final. The rights of the parties were not settled by this order.
The appellant has the remedy available to her of appealing from the order confirming the sale. Although we have found no Wisconsin case expressly holding that an order confirming or denying confirmation of a sale in probate is final and appealable, such has been held with respect to similar orders in connection with foreclosures, and partition actions.
Alsmeyer v. Norden (1966), 30 Wis.2d 593, 141 N.W.2d 177; Fronhaefer v. Richter (1941), 237 Wis. 282, 296 N.W. 588; Griswold v. Barden (1911), 146 Wis. 35, 130 N.W. 952; Jesup v. City Bank of Racine (1862), 15 Wis. 668 (*604); Starkweather v. Hawes (1859), 10 Wis. 109 (*126); Downer v. Cross (1853), 2 Wis. 272 (*371); Strong v. Catton (1853), 1 Wis. 408 (*471).
Gertz v. Gertz (1948), 252 Wis. 286, 31 N.W.2d 620. (Although the order directing a sale in a partition action is not directly appealable, that order is reviewable as an intermediate order under sec. 274.34, Stats., when the order confirming the sale is appealed.) See also Walsch v. Deanovich (1969), 43 Wis.2d 71, 168 N.W.2d 213.
Since the order here appealed from is nonappealable, this court has no jurisdiction to entertain the appeal and it should therefore be dismissed. Accordingly, we do not reach the merits.
Mitler v. Associated Contractors (1958), 3 Wis.2d 331, 333, 88 N.W.2d 672.
By the Court. — Appeal dismissed.