Opinion
January 8, 1958 —
February 4, 1958.
APPEAL from an order and a judgment of the county court of Winnebago county: HERBERT J. MUELLER, Judge. Reversed.
For the appellant there were briefs by the Attorney General and E. Weston Wood and John E. Armstrong, assistant attorneys general, and oral argument by Mr. Wood and Mr. Armstrong.
For the respondents there was a brief by Morris Warzinik of Neenah, attorney, and D. E. McDonald of Oshkosh of counsel, and oral argument by Mr. Warzinik and by Mr. John W. O'Leary of Neenah.
The order dated June 17, 1957, directed that a final judgment in In re the Estate of John Strange, deceased, entered June 13, 1928, be amended to provide for a different distribution of a part of the distributable estate. On July 15, 1957, a judgment was entered in accordance with the terms of the order. The judgment declares void a trust created by the 1928 judgment and such judgment is amended so as to direct the executors to distribute to the heirs-at-law, minus inheritance taxes, the fund which the executors held and administered as a trust fund.
If there is a trust it is a charitable trust, wherefore the attorney general appeared in the county court to sustain its validity and appeals now from the order and judgment. Sec. 231.34, Stats.
John Strange, a layman, drew his own will, making various bequests and among them he provided:
"When said debts are all paid I suggest and direct that as fast as funds are available that good bonds up to Twenty-five Thousand Dollars ($25,000) par value, be purchased and held by my executors, and the interest thereon be paid for divers uplift and charitable purposes as the executors deem most worthy and most needed. I suggest that at least Three Hundred Dollars ($300) per year of this sum be paid to churches in Neenah and Menasha not having confessionals or schools, but including Christian Science. I think the latter the most worthy of support and the most sensible and practical in its approach toward true religion. . . .
"To encourage frequent painting of the homes of Neenah and Menasha I suggest and direct the payment of Two Hundred Dollars ($200) a year — conditioned upon this fund being made by others One Thousand Dollars ($1,000) a year — for paints to be contributed to those most needing and most worthy — under direction of a suitable committee.
"I deem it a wise and profitable investment to place a reasonable annual sum as a protection to business against the losses imposed upon business by saloons and the liquor traffic, and with this in mind I direct that at least Five Hundred Dollars ($500) a year be paid out of the income from my estate for this purpose. The Anti-Saloon League has proven the most effective and practical agency thus far in combating this greatest of all evils, and I advise liberal assistance being given to this organization, by my executors."
The will was admitted to probate. In due course a proceeding for its construction was brought as a result of which, on January 18, 1924, the county court determined that these provisions were mere wishes, and were void for indefiniteness.
Thereafter, on or about May 8, 1928, the executors, one of whom was John Paul Strange, a son of the deceased and the present petitioner, petitioned the court showing that the estate was ready for settlement. Their petition further stated that they had accumulated $25,000 and held it in trust funds for the purposes specified in the will. The petition then asked for distribution of the estate, the assignment of the fund to the executrix and executors in trust, and the residue of the estate to the widow and heirs-at-law.
Concurrently the widow and all the heirs-at-law, which again included John Paul Strange, signed and filed with the court a document wherein they "hereby join in the petition for the distribution of the assets of the estate of said John Strange, deceased, and do hereby also join in the petition to assign the trust fund accumulated, as directed in and by the will of said deceased, to the executrix and executors under said will, and do further waive any and all rights that we may have in said trust fund, and do request that the judge of the county court of Winnebago county, Wisconsin, do assign the same as requested in and by the petition of said executrix and executors."
The court requested briefs concerning the bequest in trust and one in support of the trust was filed May 7, 1928, by Bullard Spengler, attorneys for the executrix and executors. On June 13, 1928, the court entered a judgment which recited the waiver and consent by the heirs to the assignment of $25,000 in trust to the executors and executrix "as provided in and by the will of said deceased" and which then ordered and adjudged: "That the sum of Twenty-five Thousand Dollars ($25,000) accumulated as directed be by the executrix and executors set apart, held, kept, and invested by them as trustees, in some safe, reliable, and profitable manner, and the income thereof they pay over to or use and expend for divers public uplift and charitable purposes according to the will of said deceased."
The executors administered the trust thereafter in general conformity with its purpose as expressed by the will until testator's widow and his son Hugh Strange, both of whom were executors of the will, died. Then, on February 19, 1957, the surviving executor, John Paul Strange, filed a petition in county court asking that the judgment assigning the estate and creating the trust be amended and corrected to conform to the decision of January 18, 1924, construing the will, and that the court now distribute the trust fund among the testator's heirs-at-law. The petition was heard upon notice to all interested parties. The county court filed a written decision and, on July 15, 1957, ordered and adjudged, so far as is now material:
1. That the trust created by the original judgment of July 13, 1928, is void.
2. That such judgment is amended in respect to the creation of the trust.
3. That the funds held by the executor constituting the alleged trust be distributed to the heirs-at-law of John Strange as intestate property.
The attorney general appeals.
Appellant submits that statutes provide the time during which an erroneous judgment may be corrected by an appeal to the supreme court or by proceedings in the trial court; and if the time so limited expires without any application for relief from the judgment no relief may be had.
An appeal from a judgment of a county court must be taken within sixty days from the entry thereof, sec. 324.04 (1), Stats. The time for appeal may be extended in certain circumstances but the order for extension must be made within one year after the act complained of. Sec. 324.05.
Sec. 269.46(1), Stats., permits a court within one year after notice thereof to relieve a party from a judgment obtained against him through his mistake, inadvertence, surprise, or excusable neglect.
Neither statute gives a court jurisdiction to grant relief in 1957 from a judgment entered in 1928.
Sec. 324.21, Stats., provides:
"RECORDS, HOW AMENDED. Any county court may amend, correct, and perfect its record of any matter transacted therein in such manner as may be necessary to make the same conform to the truth."
Concerning this statute we have said:
"Manifestly this authorizes the correction of purely clerical mistakes. It authorizes the correction of records which do not speak the truth concerning the real action of the court. It does not authorize the court to reverse or set aside its orders or to vacate its judgments. If it permitted the court at its will and pleasure, or upon motion of any party interested, to vacate and set aside, reverse, or modify its orders or judgments, there would be no finality to the procedure of county courts, and would give rise to a chaotic condition anomalous in the law and intolerable in fact." Estate of Cudahy (1928), 196 Wis. 260, 264, 219 N.W. 203.
Review of a judgment procured by fraud may be had at any time when equity requires it. No fraud is charged here nor would the record support such a contention.
Respondents alleged, without any supporting facts, that the 1928 judgment is erroneous (which is of no importance after time to appeal has gone by) and was pronounced and entered through inadvertence or mistake. No testimony was offered bearing on these charges.
If inadvertence or mistake is of any importance there is no proof of either of them. The trial court did not find that they were present. Its memorandum decision says:
"We come now to the question as to why the judgment was entered as it was in view of the previous ruling by the court. No testimony was introduced to throw any light on it. This leaves that matter entirely to speculation."
Its decision does no more than to demonstrate to that court's satisfaction that in its trust provisions the 1928 judgment was founded on error and ought to be reformed.
We have the same situation as that in Estate of White (1950), 256 Wis. 467, 41 N.W.2d 776. In that case final judgment was entered by the county court in 1929. No appeal was taken. In 1949 the same court entered another judgment which declared void the earlier one and assigned the estate differently. We held, page 474, that a construction of the will was made by the original judgment and:
". . . as we have often held, such judgment, however erroneous, must stand unless reversed, modified, or set aside in accordance with the statutes governing appeals and retrials. [Cases cited.] The rights given by such statutes to reverse, modify, or set aside the 1929 judgment have long expired. An attempt by the county court to do such things in 1949 is beyond its (and our) jurisdiction and is void."
The law in Wisconsin is well established as the White Case states it. The learned trial court had no jurisdiction in the present case to alter the judgment of 1928. It is unnecessary for us to consider appellant's argument that if the court could it ought not to do so, and the further argument that the heirs-at-law have waived their rights or are estopped from asserting them. Our conclusion that the learned trial court lacked the present jurisdiction to modify the 1928 judgment or to declare it void disposes of the appeal.
By the Court. — Judgment reversed, and cause remanded with directions to reinstate the judgment of June 13, 1928.