In re Marchant's Estate

SiebecKER, J. The respondent, Anthony Marchant, claims to be the legal heir of Thomas Marchant, by virtue of a proceeding under ch. 49, R. S. 1858, prescribing the procedure for establishing heirships. This statute provided that the heirship of any person might be established by an order of the circuit court of the county wherein the person resided, upon petition setting forth the reasons for the application. It also provided that, before, such an order be made, the written consent of the person, the heirship to whose property was to be established, as well as the petition, should be filed in the office of the clerk of the circuit court, and that the order should be entered upon the record of the court. It. further provided that the petition must be accompanied by a copy of the notice of such application, and that the notice contain the substance of the petition, and that it give the time and place of such application. Erom the foregoing statement of facts, it appears that an application was made by respondent to be established the heir of Thomas Marchant, under this law. It is now* contended that the proceeding is void upon the ground that the records of the court fail to show that the application was presented or that any other proceeding in relation thereto was [530] had before the court on April 3, 1871, the time fixed in the published notice for the hearing of the application. The entry on the court’s record shows that the application was heard,on May 17, 1871, at a sitting of the court during the term which commenced on April 3d. The notice, with accompanying proof of publication, the duly executed written consent of Thomas and Elizabeth Marchant, bearing date April 3, 1871, and the petition of Anthony Lcmtz, dated April 28th, were filed with the clerk of the court on this day. An order bearing date May 17, 1871, recites that the application was made upon the petition, the written consent, the notice, and the proof of publication, and the filing of these papers with the clerk of the court, and declares that Anthony Lantz is thereby established the rightful heir at law of Thomas and Elizabeth Marchant. The main objection to the validity of the proceeding is the absence of any entry in the clerk’s minutes of any pi’oceedings had in the court on April 3, 1871, the time fixed by the notice when such application would be made. There is no question but that the court had jurisdiction of the subject matter of the application, under the notice, and that it was set for hearing before the proper court and at a time and place contemplated by the statute. Under this state of facts, it is presumed that due proceedings were had at the time for which the proceedings were noticed, preparatory to the making of the order of May 17th. There is nothing Showing that the court lost jurisdiction in view of this presumption sustaining the regularity of its proceedings. As stated in Falkner v. Guild, 10 Wis. 563: “The proceedings were in a court of general jurisdiction; and the general rule in respect to such courts is, at all events where jurisdiction appears, -that, though the record does not show everything necessary to regularity, it is to be presumed unless the contrary expressly appears.” It is, however, argued that this rule cannot avail the par [531] ties to tbis action, because this was a proceeding under a special statute. Tbis subject was also considered in Falkner v. Guild, supra, and tbe court declared: “It is true that tbe proceedings under special statutes bave •sometimes been made an exception to tbis general rule as to tbe presumption, even in courts of general jurisdiction. But without entering into tbe inextricable labyrinth of cases on tbe subject, we will only say that we can see, upon principle, no reason for tbe distinction. Tbe general presumption in favor of tbe regularity of tbe proceeding of such courts is 'founded on tbe character of tbe court itself. And that character is tbe same, whether it is under a special statute or under tbe common law. I cannot see that a difference in tbe ■source of its authority to act can make any rational distinction as to tbe presumption in favor of tbe regularity of its .action.” Another consideration submitted upon tbe question is that, tbe statutes are, in their nature and effect, derogatory of the •common law and should therefore receive a strict construction. Tbe subject matter of tbe statute, as well as tbe proceedings which persons must follow to avail themselves of its provisions, are kindred to and like those for tbe adoption ■of children. Tbis kinship received marked recognition in legislation in different instances embodying provisions covering both subjects in one statutory enactment. Tbe adjudications pertaining to these subjects bave given these statutory enactments a liberal construction to accomplish their objects.' Tbe trend of tbe decisions is that these laws are designed to foster tbe best interests of tbe parties who wish to assume tbe close relationship they seek to guard and establish, “and no narrow ■construction should be indulged in that will tend to defeat a result so obviously intended and in every way beneficial.” "We are led to tbe conclusion that tbe record shows that tbe ■court bad jurisdiction of tbe parties and tbe subject matter on tbe day set by tbe notice, namely, April 3, 1871, and that tbe order of May 17th, at tbe same term of tbe court, was [532] made upon due proceeding preparatory thereto. Falkner v. Guild, supra; Platt v. Robinson, 10 Wis. 128; Allen v. Beekman, 42 Wis. 185; Voelz v. Voelz, 88 Wis. 461, 60 N. W. 707; Parsons v. Parsons, 101 Wis. 76, 77 N. W. 147; Nugent v. Powell, 4 Wyo. 173, 33 Pac. 23; In re Johnson's Estate, 98 Cal. 531, 33 Pac. 460; Barnard v. Barnard, 119 Ill. 92, 8 N. E. 320; Pierce v. Strickland, 26 Me. 277. It is further contended that, since the order was not spread upon the record of the court as prescribed, it was inoperative and void. The argument assumes that the act of recording was a necessary step in establishing the heirship. The requirements of the statute do not contemplate the entry of the order as a necessary condition precedent to the completion and validity of the proceeding for the establishment of an heirship. When the court announced its determination, and signed the order incorporating its decision upon the application, it became an effectual and final decree, and established the legal rights of the parties; and an omission of the ministerial duty of the court’s officers to enter the order at length upon the records cannot be invoked to the prejudice of the parties, nor does it invalidate the order or decree of the court. Abney v. De Loach, 84 Ala. 393, 4 South. 757; Nugent v. Powell, supra. It is claimed that the county court’s action in determining who are the heirs of Thomas Marehant is premature, since the administration had not been carried to the point of distribution. We can conceive of no good reason why the county court could not properly proceed to determine this question before the administration had reached the stage for a final distribution of the estate. In this instance all the parties interested in the question have appeared in the proceeding upon order and due notice, and full opportunity to hear and try this controversy has been given, and a full and complete trial of this question has taken place, and a determination based upon a proper procedure of the county court has [533] been made, and it must be deemed conclusive upon tbe appellants. It is urged that respondent waived bis rights as tbe established heir by filing a claim against tbe estate for tbe value of bis services rendered to tbe deceased. We can see no good reason for bolding that such action should constitute a waiver of bis legal rights as tbe established heir; Tbe claim, no doubt, was filed to protect him in bis rights if it should be determined that be bad no interest in tbe estate as such established heir, and bis act of filing a claim is referable to such a contingency, without operating to the prejudice of bis other rights. It must follow that respondent is the legally established heir of Thomas Marchant, deceased, and must be so regarded upon tbe final distribution of tbe estate. By the Court. — Judgment affirmed.