Summary
In Kalitzky, our supreme court allowed the decedent's son to reopen probate proceedings five years after the probate court entered a final order.
Summary of this case from Kaiser v. Townline CTH-N LLC (In re Kaiser)Opinion
September 14, 1949. —
October 11, 1949.
APPEAL from an order of the county court of Milwaukee county: CHARLES A. HANSEN, Judge. Reversed.
Ken Traeger of Gresham, for the appellant.
For the respondent the cause was submitted on the brief of William E. Burke of Milwaukee.
Robert W. Kalitzky, the appellant, made application to the county court to reopen probate proceedings, to appoint a special administrator to inventory and account for certain property, to construe the will, and to make an order assigning the residue in a manner different from the construction and order of distribution originally entered. The court heard and considered the petition and dismissed it on the merits. From the order of dismissal the petitioner has appealed.
It appears from the record that Annie D. Kalitzky died testate March 7, 1940, a resident of Milwaukee county, leaving both real and personal property. She was survived by her husband, Waldemar, her son, Robert, then twenty years of age, and other legatees who are not concerned in the present proceedings. Kurt Schnellbaecher was appointed Robert's guardian ad litem, the will was admitted to probate, and Waldemar was appointed administrator with the will annexed. In October, 1940, Robert entered the United States navy and on November 16, 1940, he became twenty-one years of age. Mr. Schnellbaecher retired as guardian ad litem and, as Robert was in military service, the court appointed George A. Bowman "attorney for Robert to appear for him and take care of his interests during the settlement of the estate." Both appellant and respondent refer to Mr. Bowman as guardian ad litem but the record does not bear them out. When Mr. Bowman appears he sometimes signs as "attorney for Robert" and, in the matters of construction and of distribution, as "special representative for Robert."
On June 11, 1943, the court, by order, set a day for a construction of the will, for settling the administrator's account, for determining the inheritance tax, and for assigning the residue. The order setting the hearing conforms to secs. 310.11, 317.11, and 324.18, Stats., and directs that notice thereof be served personally on interested persons residing within the state of Wisconsin and by mail on interested persons residing elsewhere if by due diligence they can be found. No such service was made on Robert nor does the record show any attempt to do so, but Mr. Bowman admitted service as Robert's special representative and in that capacity attended the hearings and approved the orders therein made. On July 30, 1943, the court construed the will and entered a final decree approving the administrator's account and assigning the estate. It is by this construction and distribution that Robert considers himself wronged but because our decision rests on other grounds we do not find it necessary to set forth the provisions of the order or of the decree except to say that among other provisions for him the decree assigned to Robert a specific savings account to be delivered to him when he reached the age of twenty-four years. He became twenty-four on November 16, 1943, and on November 18, 1943, the legacy was given him and he receipted for it. The receipt contains the following paragraph:
"I hereby release and forever discharge the said Waldemar J. Kalitzky, administrator with the will annexed of the estate of Annie D. Kalitzky also known as Anna D. Kalitzky and Mrs. W. Kalitzky, deceased, from any and all further liability for or on account thereof, and consent that the final decree be entered in the said estate and made absolute forthwith, and that his bond as such administrator with the will annexed herein be canceled."
It was executed before a notary public of Milwaukee county. On the same day, November 18, 1943, Waldemar was discharged as administrator with the will annexed, his bond released, and the final decree made absolute.
On November 2, 1945, Robert was discharged from the navy. On May 17, 1948, through an order to show cause, he applied for the reopening and the relief before stated. His petition alleged that at the time the matters complained of were done he was in military service and had no notice or knowledge of them. There was a hearing on his petition and the order to show cause and on January 28, 1949, the court dismissed both on the merits and filed an opinion of which the part pertinent to our decision follows:
"Most of the questions raised by the order to show cause were considered and passed upon by the Court at former hearings wherein all the parties were ably represented by counsel. In addition to this, the court on July 30, 1943, made a written order construing the will, particularly in respect to the specific bequests of real estate now mentioned in the petition for an order to show cause. No appeal was taken from this order and it has stood unchallenged for over five years. The court is satisfied that its original order construing the will of the above-named deceased was proper and correct, and that the final decree assigned the real estate in this estate in conformity with said order."
From the order of dismissal this appeal is taken.
The decisive question on this appeal is whether or not the county court had jurisdiction of Robert W. Kalitzky when it construed the will and entered the final decree. If it did not they are nullities as to him, unless he has waived his right to relief or unless the court later acquired a jurisdiction which has related back to the previous proceedings.
We have been referred to no authority which holds that the appointment by the court of an attorney or special representative without the knowledge and consent of a party sui juris has deprived that party of the right to be served with notice of proceedings, as recognized by the court's own order and by secs. 310.11, 317.11, and 324.18, Stats. We do not think that when the court made the appointment it intended to diminish this or any other right which Robert had before he went into military service but rather it intended to make certain that a protector would be on hand in those matters where jurisdiction had been obtained and Robert's interests might be impaired because of his inability to return and protect them. We do not recognize the service of notice on Mr. Bowman as a satisfactory legal substitute for service on Robert and we hold, as it was held in Ruth v. Oberbrunner (1876), 40 Wis. 238, that the order and decree of July 30, 1943, was totally void, as to him, for lack of jurisdiction unless some later event or action has made it binding upon him.
When a county court fails to acquire jurisdiction of a person because of insufficient notice, sec. 324.36, Stats., provides procedure for bringing him in later and unless he show cause to the contrary the former proceeding may be made applicable to him, but he shall have the same remedies and relief as if he had been seasonably served. Before this procedure was invoked by anyone Robert himself invoked the jurisdiction of the court by his petition for relief. At that time the court could have construed the will and have affirmed or modified the decree as it thought best after hearing what Robert had to say and with due regard to his rights as a party appearing for the first time in the matter, and because of Robert's voluntary appearance we would be constrained to hold that he had then submitted to jurisdiction and was bound by whatever findings and order the court might make subject, of course, to the right of review for error. However, it is evident from the opinion of the county court in support of its order dismissing the petition that the court assumed it had had jurisdiction all along and that Robert was foreclosed by the prior proceedings because he, as the court said, was represented in them and because of the length of time since the decree was entered. It was error to dismiss Robert's petition and order on those grounds. We do not think he has had his day in court.
We would have thought the release and consent to making absolute the final decree which formed a part of Robert's receipt for his legacy in 1943 would have sufficed to defeat his application for a hearing in 1948 in the absence of fraud or other equitable excuse but that portion of the receipt was nowhere considered by the county court or by counsel. It was not sent up with the original record and counsel refer to it only to show that Robert was in Milwaukee on the day of its date. Since there must be a new hearing we are not justified in making any assumption concerning the effect of the release upon appellant's application for relief in county court.
By the Court. — Order reversed and cause remanded with directions to hear and determine appellant's petition without prejudice to him from prior orders and decrees.