Opinion
June 4, 1956 —
June 22, 1956.
APPEAL, from an order of the county court of Milwaukee county: M. S. SHERIDAN, Judge. Reversed.
For the appellant there was a brief by Joseph J. O'Day, attorney, and A. W. Schutz of counsel, both of Milwaukee, and oral argument by Mr. Schutz.
For the respondents there was a brief by Shaw, Muskat Paulsen and R. J. Schimmel, all of Milwaukee, for the adult remaindermen, by O. A. Grootemaat of Milwaukee, guardian ad litem for minor remaindermen, by Churchill, Duback Churchill of Milwaukee, for the executor of the estate of Vincent Steck, deceased, and by Kaumheimer, Alt Likert of Milwaukee, for the Marine National Exchange Bank, trustee of the Steck inter vivos trust, and oral argument by Mr. Duback and Mr. Likert.
Vincent Steck, a resident of Milwaukee, died on February 16, 1954. His widow, Martha C. Steck, survived him. She died on June 22, 1955. The appellant, Jeanne L. Otterson, is the executrix of the estate of Martha C. Steck, deceased, Vincent Steck left a will which had been executed on September 18, 1951. The respondent, H. Morley Fraser, is the executor under that will. On September 18, 1951, immediately before executing his will, Vincent Steck also executed a trust instrument (predated September 17, 1951). The respondent, Marine National Exchange Bank of Milwaukee, is the trustee under that instrument. The other respondents herein are remaindermen under the trust instrument. Both the will and the trust instrument of Vincent Steck are in conformity with the provisions of the statutes for the execution of wills.
Mr. Steck's will was admitted to probate on April 8, 1954, without objection from the widow. At that time she gave testimony in court with reference to the proof of heirship. On April 28, 1954, the widow filed her election to take her distributive share of the estate of the deceased husband as provided by law, instead of under provision made for her by the husband's will. On June 4, 1954, the widow filed a petition for amendment of proof of will praying that the trust instrument be admitted to probate as the will of the deceased husband, and that the will, already admitted to probate, stand as a codicil thereto. This petition was denied by order of the court entered May 13, 1955. The widow died on June 22, 1955. Her will was admitted to probate and the appellant was appointed as executrix thereof on June 30, 1955. On July 7, 1955, the executrix of the widow's will petitioned the court for the substitution of herself in her representative capacity as a party in interest in place of the widow, and for an order extending the time to appeal from the court's order of May 13, 1955. On October 4, 1955, the court by order denied the petition to extend the time to appeal to this court. This appeal is from said order. The petition of Jeanne L. Otterson as executrix of the widow's will (to which no counteraffidavit was interposed) read in part:
"That said decedent [Martha C. Steck] died June 22, 1955, at St. Anthony's Hospital in the city of Milwaukee, county and state aforesaid, immediate cause of death being carcinoma of the right ovary and carcinoma of the sigmoid; that the time for appealing from the order made and entered in the matter of the estate of said. Vincent Steck, deceased, dated May 13, 1955, will expire on the 12th day of July, 1955, and that affiant, being aggrieved thereby, as was said decedent, Martha C. Steck, desires to appeal from said order of the county court of Milwaukee county to the supreme court of the state of Wisconsin; that said decedent, Martha C. Steck, underwent surgery at said hospital on the 3d day of June, 1955, at said hospital, and for much of the period of time prior thereto and after the entry of said order was in no condition to discuss business affairs; that she makes this application in support of affiant's application to have herself in her capacity of executrix under the will of said Martha C. Steck, deceased, substituted as a party in interest in the matter of said last will and testament of Vincent Steck, deceased, in the place and stead of said Martha C. Steck, deceased, and for a further order extending the time to appeal to the supreme court of the state of Wisconsin from said order dated May 13, 1955, for a period of time not exceeding ninety days from the date hereof under and pursuant to section 324.05 of the Wisconsin statutes."
The order of October 4, 1955, from which the appeal was taken, was predicated on findings of fact and conclusions of law as follows:
"Findings of Fact
"(1) That on April 8, 1954, the will of Vincent Steck, deceased, was admitted to probate on notice and without objection, at which time Martha C. Steck, widow of Vincent Steck, was present in court and testified as to proof of heirship.
"(2) That on April 28, 1954, Martha C. Steck filed with the court her election not to take the provisions made for her under the will of her deceased husband.
"(3) That on June 4, 1954, Martha C. Steck filed with the court a petition for amendment of proof of will wherein she asked that a trust agreement dated September 17, 1951, of which Vincent Steck was the donor, be proved and admitted to probate as Vincent Steck's will and that the instrument admitted on April 8, 1954, as the last will of Vincent Steck be declared a codicil thereto.
"(4) That on May 13, 1955, after a hearing was had on the aforesaid petition and after the matter was argued by counsel and briefs submitted, an order was entered based upon an opinion of the court denying the said June 4, 1954, petition of Martha C. Steck.
"(5) That on June 22, 1955, the said Martha C. Steck, widow of Vincent Steck, died testate a resident of the city of Milwaukee, Wisconsin.
"(6) That on June 30, 1955, the last will and testament of Martha C. Steck was duly admitted to probate in this court and Jeanne L. Otterson was duly appointed executrix of the last will and testament of Martha C. Steck, deceased, pursuant to letters testamentary issued to the said Jeanne L. Otterson under date of June 30, 1955.
"(7) That on July 7, 1955, Jeanne L. Otterson, as executrix of the estate of Martha C. Steck, deceased, petitioned this court for the substitution of said executrix as a party in interest for and instead of Martha C. Steck and, pursuant to section 324.05 of the Wisconsin statutes, for an order extending the time to appeal from the aforesaid order of this court dated May 13, 1955, which said petition expressed the desire of the executrix to appeal from said order.
"(8) That the date upon which the time for taking an appeal from said order of May 13, 1955, was limited to July 12, 1955.
"(9) That if a substitution of Jeanne L. Otterson, executrix of the estate of Martha C. Steck, deceased, as a party in interest for and instead of Martha C. Steck were necessary, said executrix had ample time to be so substituted and to file a proper notice of appeal within the time allowed by statute for such appeal.
"And from the above findings of fact the court reaches the following
"Conclusions of Law
"(1) That section 324.05 of the Wisconsin statutes giving the court authority to extend the time within which to appeal to the supreme court is based upon two prerequisites:
"(a) The person applying for such relief must be `aggrieved' by the act of the court;
"(b) The applicant must be `without fault on his part' in failing to take his appeal within the time allowed by statute.
"(2) That Martha C. Steck was not an aggrieved party under the meaning of section 324.05 of the Wisconsin statutes and as a logical consequence of such conclusion, the executrix of the estate of Martha C. Steck was not an aggrieved party under the meaning of said statute.
"(3) That the executrix of the estate of Martha C. Steck, deceased, and her attorney had ample time to file a notice of appeal within the statutory time and that said executrix is not without fault in failing so to do.
"(4) That the order concerning which the extension of time to appeal is requested results from a special proceeding before this court as defined in section 260.03 of the Wisconsin statutes and is not a cause of action within the meaning of section 269.16 of the Wisconsin statutes.
"(5) That the executrix of the estate of Martha C. Steck deceased, did not have to be substituted as a party in interest before said executrix could file a valid notice of appeal from the order of this court dated May 13, 1955.
"(6) That the argument of counsel for the executrix of the estate of Martha C. Steck that the death of Martha C. Steck prior to the expiration of the period covered by her statutory life expectancy might have altered the court's decision upon which the May 13, 1955, order was based is without merit."
The sole question presented upon this appeal is whether the trial court abused its discretion in refusing to grant an extension of time to appeal from the order of the court entered on May 13, 1955.
The application of Jeanne L. Otterson as executrix of the will of Martha C. Steck for an extension of time within which to appeal was made pursuant to provisions in sec. 324.05, Stats. That statute provides as follows:
"EXTENSION OF TIME FOR APPEAL; RETRIAL. If any person aggrieved by any act of the county court shall, from any cause without fault on his part, omit to take his appeal within the time allowed, the court may, upon his petition and notice to the adverse party, and upon such terms and within such time as it shall deem reasonable, but not later than one year after the act complained of, allow an appeal, if justice appears to require it, with the same effect as though done seasonably; or the court may reopen the case and grant a retrial, but the order therefor must be made within one year after the act complained of."
The widow had petitioned the court for amendment of the proof of her husband's will, and thereby sought a determination that the trust agreement was testamentary in character, and that it was to be probated in conjunction with the will. The respondents by their answers challenged the right of the widow to maintain her petition for the reason that she had elected to take her distributive share of the decedent's estate as provided by law, instead of as provided by his last will and testament, and that, consequently, she was not a person aggrieved by the order of the court in admitting the will to probate. Respondents sought an order dismissing the widow's petition. The trial court, however, adjudicated the widow's petition and decided that the trust agreement constituted a trust inter vivos, and that it was not testamentary in character. The court refused to admit the trust instrument to probate. The widow did not appeal from the court's determination within the time permitted by law. The executrix sought to have such failure excused because of the widow's critical illness. The executrix did not file a notice of appeal within the remaining time permitted for appeal after the widow's death. However, within such period the executrix applied for an extension of time to appeal, and also for the substitution of herself as executrix and as a party in interest in place of the deceased widow. The court's declination to extend the time to appeal was based principally on the grounds that neither the widow nor the executrix were aggrieved persons under sec. 324.05, Stats., and that the executrix had ample time to file a notice of appeal, and that she was not without fault in failing to do so.
On this appeal we are not concerned with the merits of the controversy as to whether the trust instrument is testamentary in character. We are confronted only with the issue of the right of the widow, or the executrix in her stead, to appeal.
It appears of record that the widow had no knowledge of the existence of the trust instrument until after the husband died. She accepted no benefits under that instrument. Her election could not apply to the corpus of the trust arrangement unless it were to be adjudicated that the trust instrument was testamentary in character. A widow is not entitled to dower in an inter vivos trust. Will of Prasser (1909), 140 Wis. 92, 96, 121 N.W. 643; Harley v. Harley (1909), 140 Wis. 282, 288, 122 N.W. 761. By offering the trust instrument in probate as a testamentary document, the widow did not repudiate her election, nor did she thereby indicate that she desired to take partly under the "will and codicil" and partly under the law. Claiming that as a matter of law her husband's trust arrangement was a testamentary disposition, she wanted her election to apply to his entire estate — the portion referred to in the trust agreement, and that mentioned in the will.
Under provision of sec. 310.045 (2), Stats., the surviving spouse is a person interested in a petition for probate of a will. Sec. 324.22 provides for amendment of county court records. Having had an interest in the will of her husband, at least to the extent of claiming an election under the statutes as against it in its entirety, we find nothing incongruous or invalid in the action of the widow in presenting the trust instrument for probate. Since she had an interest in the matter, and was a person aggrieved for the reason that the court's decision was adverse to her interest, she was entitled to appeal. Her inability to have done so before her death, as indicated in the petition of the executrix, and not controverted, entitled the executrix to be substituted for the widow in the matter of the appeal.
Respondents contend that the executrix was at fault in failing to take the appeal within the time allowed by law. Such time expired July 12, 1955. The executrix had been appointed in that capacity on June 30, 1955. On July 7, 1955, she petitioned the court for the substitution of herself in her representative capacity in place of the deceased widow, and also for an extension of time to appeal. The trial court ruled that there was no requirement under the law for such substitution, and that were there such requirement, she had ample time within which to have been substituted and to have filed a notice of appeal.
Sec. 269.16, Stats., provides:
"DEATH OR DISABILITY OF PARTY. In case of the death or disability of a party, if the cause of action survives, the court may order the action to be continued by or against his representatives or successor in interest."
Ch. 269, Stats., which pertains to practice regulations (and which includes sec. 269.16, Stats.), is a part of Title XXV of the statutes relating to "Procedure in Civil Actions" (see Table of Contents, Stats.). Sec. 260.01 provides:
"SCOPE OF TITLE XXV. Title XXV relates to civil actions in the circuit courts and other courts of record, having concurrent jurisdiction therewith to a greater or less extent, in civil actions, and to special proceedings in such courts except where its provisions are clearly inapplicable or inappropriate to special proceedings." (Emphasis supplied.)
It was essential that there be substitution of the executrix in place of the widow, in order to enable her to appeal. Under the statutory provisions referred to, the court was empowered to direct that the action be continued in the executrix.
The trial court was in error with respect to its rulings that neither the widow nor the executrix were aggrieved persons, and that it was not necessary that the court continue the action in the executrix. It is apparent that prejudice has resulted to the executrix as a result of such misconception of the law. In Endeavor-Oxford Union F.H.S. Dist. v. Walters (1955), 270 Wis. 561, 569, 72 N.W.2d 535, this court pointed out that:
"Abuse of discretion does not necessarily mean ulterior motive, arbitrary conduct, or wilful disregard of the rights of a litigant, but it may mean a failure to apply principles of law applicable to a situation if prejudice results." (Emphasis supplied.)
Sec. 324.05, Stats., is to be liberally construed. Estate of Trimpey (1950), 257 Wis. 481, 483, 44 N.W.2d 308.
A careful consideration of the entire record has led us to the conclusion that the widow and the executrix were "aggrieved persons;" that the delay in seeking the extension was without fault on their part, and that justice required the extension of time for appeal. We are obliged to determine that the trial court abused its discretion in denying the application for such extension of time.
By the Court. — Order reversed, and cause remanded with directions to order that the action be continued in the executrix; and to grant appellant a reasonable time to perfect the appeal and settle the bill of exceptions.