Appeal of Schæffner

Lvorr, J. The whole case concerning the proper construction of the will and the rights of the several persons interested under it, is discussed in the briefs of counsel. Some of the questions involved are important. But during the progress of the argument at the bar, and after consultation, we informed-counsel that in our opinion the only questions presented by this appeal for determination are, whether the county court had jurisdiction, and, if so, whether the order construing the will was made prematurely. We have no doubt the view then taken is correct, and that it would be improper to decide the merits of the case at the present time. For reasons apparent upon the record, and which we deem it entirely unnecessary to state, if the county court has jurisdiction to make any order in the premises, the time had arrived, when the order appealed from was made, for the court to give construction to the will. This view is sustained by the opinion of Dixon, O. J., on the motion for a rehearing in Brook v. Chappell, 34 Wis., 419. The facts of the two cases are different, but the doctrine there asserted is applicable here. [264] This leaves for our determination only the question of jurisdiction. That the county court has jurisdiction to give construction to wills when that is necessary to the due administration of the estates of deceased persons, and may exercise the same as fully as can a court of equity, is settled in Brook v. Chappell, supra. But the jurisdiction of the county court in this particular case is denied upon two grounds: 1. Because (as it is alleged) some of the parties interested under the will had no notice of the proceedings, and were not before the court; and 2. Because the county judge, before he was chosen such judge, had been of counsel for the present appellant. Neither of these objections is well taken. As to the first, we are not aware of any statute which prescribes what notice shall be given in such cases, although in Ruth v. Oberbrunner, 40 Wis., 238, we held (following Bresee v. Stiles, 22 id., 120), that only those parties in interest who have notice of the proceedings are bound by the order of the court in a case lilj:e this. Here the county judge, by virtue of authority conferred by the statute (R. S., ch. 117, sec. 42), prescribed the notice which should be given of the proceedings, and the same was given accordingly. This gave the court jurisdiction of all persons interested in the proceedings, and binds them 'by the order, if such order is otherwise sufficient. The second objection is overruled by the case of Morgan v. Hammett, 23 Wis., 30. It was there held that a county judge was not disqualified to grant a license to an administrator to sell real estate to pay debts. of the intestate, because he had been of counsel for some parties interested in such sale. That was not (as it is argued) a mere ministerial, but a judicial act, because it required an adjudication of the existence of certain facts essential to a valid license, as that the estate was indebted and that the administrator had no personal property in his hands out of the proceeds of which he might and ought to pa.y the debts. That case and the case under consideration stand [265] on the same ground, and should be determined by the same principle. The order of the circuit court must be reversed, and the cause remanded for further proceedings according to law. By the Oov/rt. — So ordered.