Gertsen v. Clementson

Mabshall, J. Tbe judgment cannot be affirmed without a judicial repeal of sec. 3790, Stats. 1898. That statute is plain; it is constitutional ;• it is mandatory. All its provisions up to the decision of tbe court complained of were fully complied witb. Then, whereas tbe statute says “tbe will shall have the same force and effect as if it bad been originally proved and allowed in tbe same court,” tbe learned court said otherwise, and such is tbe effect of tbe judgment before us. Tbe mistake was made, it seems, by looking to tbe essentials of a valid original probate of a will in this state, instead of such essentials in Nebraska. Tbe language of tbe statute is not to tbe effect that if it appears that tbe former probate was according to tbe laws of this state tbe will shall be admitted in tbe secondary proceeding witb like effect as if they were primary: to tbe contrary it says: “If on tbe bearing it shall appear to the court that tbe order or decree admitting such will to probate was made by a court of competent jurisdiction, . . . tbe will shall have the same force and effect as if it bad been originally proved and allowed in tbe same court.” There is no controversy but what tbe foreign probate was made by a court of competent jurisdiction. Tbe exemplified copy of tbe proceedings in that regard is regular in every respect and that is not disputed. We are unable to see any warrant for tbe award of $75 to tbe contestant for attorney’s fees, and tbe direction for its payment out of tbe estate of Emer Gertsen. Respondent’s counsel points to cb. 397, Laws of 1901, to sustain that part of tbe judgment. It seems tbe learned court gathered an erroneous idea therefrom. It says: “Any court of record, in contests arising therein, upon application for tbe probate of any will, in its discretion, may . . . allow to tbe contestant if successful in tbe circuit court a reasonable attorney’s fee out of said estate for services in such contest in said circuit court.” [605] The first court mentioned refers unmistakably to the one having primary jurisdiction of the probate of wills. It is the court wherein the contest arises, the one of first instance — the county court — that is given authority to allow the attorney’s fees and direct the payment thereof out of the estate. By the Court. — The judgment appealed from is reversed, and the cause remanded with directions to reverse the judgment or order of the county court, and to render judgment admitting the will to probate, with costs in favor of the proponent, and to remand the matter to the county court with directions to proceed therein according to law.