Opinion
September 7, 1954 —
October 5, 1954.
APPEAL from an order of the county court of Waupaca county: A. M. SCHELLER, Judge. Affirmed.
For the appellants there was a brief by Jack J. Schumacher of Shawano, attorney, and Lehner, Lehner Behling of Oconto Falls of counsel, and oral argument by Mr. Schumacher and Mr. Adolph P. Lehner.
For the respondent there was a brief by Edward J. Hart, and oral argument by Mr. Hart and by Mr. Wendell McHenry, both of Waupaca.
The order from which the appeal is taken was entered July 1, 1953. It admitted to probate a document offered as the last will of Albert Draheim, deceased, and appointed as executor of the will John N. Jaeckels, the person so nominated by the testator.
Albert Draheim executed his last will on May 23, 1951, and died on December 12, or perhaps December 14, 1952, at the age of eighty-six. The will was drawn pursuant to his instructions by Attorney Francis A. Werner. It provided for the payment of Draheim's debts and funeral expenses, bequeathed $500 to a church, and left the residue of the estate to Draheim's sister, Paulina. Other close relatives of the testator were his brother Reinhold Draheim, a sister Augusta, and a number of nieces and nephews.
On December 18, 1952, Paulina and Jaeckels joined in a petition to the county court praying that the will be admitted to probate and that letters testamentary be issued to Jaeckels. The court set January 20, 1953, as the date when the petition should be heard. On January 19, 1953, Attorney J. E. O'Brien, since deceased, served notice on attorney Werner that he was retained by Paulina, Reinhold, Augusta, and the nephews and nieces of the testator before referred to. At the same time he served on Werner and filed in court on behalf of all his clients, including Paulina, objections to the admission of the will, alleging that it was not duly executed, that it was procured by undue influence, and that at the time of execution the testator was mentally incompetent to make a will. At the same time he filed in court an affidavit whereby Paulina charged that she could not have a fair trial of the issue of admitting the will to probate because of the prejudice of judge SCHELLER and therefore demanded a change of venue.
On January 20, 1953, Attorney Werner filed his affidavit that neither he nor Mr. Jaeckels had been given five days' notice in writing prior to the hearing that an affidavit of prejudice would be filed, and that he had first learned of it when he attended court that day as witness to the will and as attorney for Jaeckels. Thereupon the court entered an order directing Paulina to pay immediately to Werner $7.30 witness fees and $10 attorney's fees, for her failure to notify Werner or jaeckels that such affidavit of prejudice would be filed. Notice of such order was served on Paulina and on Mr. O'Brien. It was ignored, and on February 7, 1953, the court, — Judge SCHELLER, — entered an order that by reason of such failure to pay witness and attorney fees Paulina's affidavit of prejudice became null and void and that he, the judge, was not disqualified to proceed with hearing proof of the will and the objections thereto; and he ordered that such objections be heard on March 18, 1953. Notice of the entry of this order was given the objectors and Mr. O'Brien. Mr. O'Brien thereupon paid the fees in the sum previously ordered.
On March 6, 1953, Paulina executed and filed a renunciation of the provisions made for her by Albert Draheim's will. The same document informed the court that the church to which the will left $500 did not exist, whereby Paulina is established as sole beneficiary, and she requested the court to refuse to admit the will to probate and to dispose of the estate as intestate property. On the same day Paulina, her brother Reinhold, her sister Augusta, and the nephews and nieces made and filed their petition alleging that Albert Draheim had died intestate December 14, 1952, and praying that letters of administration be granted to Reinhold Draheim. Simultaneously they filed an affidavit referring to the petition for administration, stating that they believed they could not have a fair trial in such matter because of the prejudice of judge SCHELLER and demanding a change of venue.
On the adjourned date, March 18 and 19, 1953, the petition for probate of the will and the objections thereto were heard before judge SCHELLER, who then took the matter under advisement. Before a decision was reached, and on April 29, 1953, Paulina in writing withdrew her objections to the will and her renunciation of benefits which it provided for her, and asserted that she renewed her position as a petitioner seeking admission of the will to probate.
On July 1, 1953, the court entered its order resolving the objections to the will in favor of its validity, admitting the will to probate, and appointing Mr. Jaeckels executor. Findings of fact and a judgment were entered at once conforming to such order.
On September 9, 1953, Paulina repudiated the renunciation, and on September 17, 1953, she joined the other objectors in taking the present appeal which is treated here as an appeal from the judgment so that all questions may be considered, although the notice of appeal states that it is from the order, whereby many of appellants' questions would go unanswered.
The appellants' first contention is that upon the filing of the affidavit of prejudice by Paulina on January 19, 1953, judge SCHELLER lost all jurisdiction, wherefore his subsequent orders are void. Sec. 253.07(1) (b), Stats., states that the prejudiced judge "shall thereupon be disqualified to act in relation to that matter;" (c) directs him to request another judge to hold court to decide such matter; (d) provides that the person who files such affidavit of prejudice without five days' notice to the adverse party prior to the hearing may be ordered by the court "to immediately pay to the adverse party" the fees of his witnesses and his attorney's fees of $10. Further, "Failure to make payment as ordered shall nullify the effect of the affidavit of prejudice."
The effect of these statutory provisions is to modify the immediate and total disqualification of the protested judge prescribed by (b) ; (c) left him jurisdiction to call in another judge; (d) left him jurisdiction to order immediate payment of witness and attorney's fees and in default of such payment restored his general jurisdiction. The immediacy of the payment which may be ordered demonstrates that the order may be made by the judge originally sitting when notice has not been given that the affidavit will be filed. We consider that the statute preserves judge SCHELLER'S jurisdiction to make the order regarding fees and expressly restored all original jurisdiction to him for Paulina's default in compliance.
Appellants argue that although the statute provides fees in favor of the adverse party neither Werner, who was named in the order, nor Jaeckels was an adverse party as contemplated by the statute. Werner was present as Jaeckels' attorney and as a witness to the will. It was he to whom the fees would ultimately be paid and we do not regard it as important that the order, after reciting the capacity in which Werner appeared, directed the fees to be paid to him directly rather than to him through Jaeckels. But, appellants say, even Jaeckels, as a person merely named as executor, is not a party adverse to them in this proceeding. A prospective executor has a real, tangible interest in the probate of a will which nominated him. (We note that such positions are diligently sought by corporations having fiduciary powers.) Parties seeking to prevent his appointment are ipso facto adverse if he is properly in the proceeding at all. Will of Dardis (1908), 135 Wis. 457, 462, 115 N.W. 332, construes secs. 310.01, 310.02, and 310.03, Stats., then appearing as secs. 3784, 3785, and 3786, inclusive, to require the person named as executor to take steps to bring the question of the will's validity before the proper probate court. It is in strict accord with this duty that a person named as executor petitions the court to admit to probate the will which nominates him. As a proponent he was an adverse party to Paulina who, when she filed the affidavit of prejudice simultaneously filed objections to the will. We conclude that judge SCHELLER had jurisdiction to make an order for the payment of fees consequent upon the affidavit of prejudice and that there was no infirmity in the order itself which would render it void. The failure of Paulina then to obey the order nullified her affidavit of prejudice and restored to judge SCHELLER his entire original jurisdiction to determine the questions raised by the petition to admit the will and the objections thereto.
Even so, appellants submit that their joint affidavit of prejudice filed March 6, 1953, deprived the judge of jurisdiction to determine subsequently the questions incident to the admission of the will. They are mistaken in this for the affidavit was not filed in that proceeding but in connection with their petition that Draheim had died intestate and an administration should be granted. The affidavit by its own terms refers only to the petition for administration and recites that the persons who signed it believe they cannot have a fair trial in such matter because of the prejudice of the judge. We consider that it was quite ineffective to impair jurisdiction in the proceeding to determine the validity of the will which was then pending. Moreover, the date set by the court for hearing the petition to prove the will was January 20, 1953, and proceedings were had in that matter on that day. Sec. 253.07(1) (b), Stats., declares that an affidavit of prejudice may be filed at any time up to and including the day set for hearing. On March 6, 1953, that day was long past.
We note that appellants argue in another connection that Albert Draheim made several wills before the one which they now claim to be void. Obviously, before any petition for administration could be considered by the trial court, it must be determined whether the present will is valid and, if it is not, whether a prior one existed unrevoked. Proceedings to determine testacy are not to be interrupted or subordinated to proceedings, commenced later, for administration. Nor can we approve appellants' argument that the nonexistence of the church to which a bequest was made and the renunciation of her legacy by Paulina, the only other beneficiary, had the effect of wiping out the will. In Will of Dardis, supra, we pointed out that public policy requires the probate court to adjudicate as to the legal existence of the propounded document as a will. The wishes of interested parties for a different distribution must give way to that primary function of the probate court.
The trial court did proceed to an adjudication which found the will valid over the objections of those who would have inherited in an intestacy. Albert Draheim successfully conducted his own affairs up to and later than the date of the will. The evidence that he was competent and not subjected or susceptible to undue influence is so strong and evidence to the contrary so weak that we consider it unnecessary to summarize it. It amply supports the findings of valid execution, testamentary capacity, and freedom from undue influence which the trial court made and the order and judgment based thereon which admitted the will to probate and appointed as executor the person whom the testator nominated in the will.
By the Court. — Order affirmed.