Bovee v. Johnson

Cassoday, C. J. 1. The rulings of the circuit court to which exceptions were taken were to the effect that where an heir at law is present in the county court at the time the will is admitted to probate and makes no objection to the same, and subsequently appeals therefrom to the circuit court, he is estopped from contesting such probate in the circuit court by reason of his consent given in the county court. If such is the [451] law then it has been repeatedly disregarded by trial courts, if not by this court. The statute declares: “No will shall be effectual to pass either real or personal estate unless it shall have been duly approved and allowed in the county court as provided in these statutes, or on appeal in the circuit court or in the supreme court.” Sec. 2294, Stats. 1898. Under that statute the circuit court is only authorized to prove and allow the probate of the will when taken to that court on appeal from the county court. Will of Hunt, 122 Wis. 460, 463, 100 N. W. 874. Another section of the statute provides that “in all cases not otherwise provided for, . . . any person aggrieved by any order, judgment, decree, determination” of the county court “may appeal therefrom to the circuit court.” Sec. 4031, Stats. 1898. The statute also provides that when the cause is thus transferred from the county court to the circuit court by appeal, it “may be brought to trial in the same manner as actions originally brought therein, and the court shall proceed to the trial and the determination of the matter according to the rules of law, allowing a trial by jury of all questions of fact, in cases where such trial may be proper; and such court may direct an issue to be made up between the parties in a brief form, when it shall be deemed necessary, and appeals may be taken to the supreme court as in other cases.” Sec. 4034, Stats. 1898. Thus, it was held by this court at an early day that upon such appeal there is to be “a trial de novo in the circuit court, and the order of $te county court was wholly immaterial. It was properly rejected as an item of evidence to be considered by the jury.” Central Bank v. St. John, 17 Wis. 157, 166. In a later case it was held: “Upon appeal by either party from an award of commissioners allowing a claim against the estate of a decedent, the case is triable de novo in the circuit court, and the amount of the plaintiff’s recovery may exceed the amount of the award.” York v. Orton, 65 Wis. 6, 8, 26 N. W. 166. [452] Id. a late case od appeal from the judgment of the circuit court affirming the final order of distribution of the comity court it was held that “the trial in circuit court is a trial de novo, and not a mere review of errors.” Fitch v. Huntington, 125 Wis. 204, 209, 102 N. W. 1066. The same rule has been applied in case of appeals from the county court in will cases. Thus, in an early case where the will was admitted to probate by the county court without objection, four of the heirs at law appealed therefrom to the circuit court, where the cause was tried de novo, the proponents and executors taking upon themselves the burden of proving the execution of the will anew, the same as though it had never been admitted to probate in the county court. Will of Jackman, 26 Wis. 104, 108, 109. In that case it was said by the majority of the court: “In this state the jurisdiction concerning the probate of wills and the administration and settlement of estates is vested in the county courts. The decision of those courts upon the question of the validity or invalidity of the will is conclusive, unless an appeal is taken therefrom. . . . And upon the appeal being perfected, the circuit court is authorized to ‘proceed to the trial and determination of the question according-to the rules of law; and if there shall be any question of fact to be decided, issue may be joined thereon under the direction of the court, and a trial thereof had by a jury/ . . . And so, upon an appeal from an order of the county court admitting to probate a will, the circuit court must proceed and determine the matter according to settled principles applicable to the case; and if the assistance of the jury is desirable to determine doubtful questions of fact, it may have the verdict of a jury to inform its judgment and conscience.” It was there held: “(1) On appeal from an order admitting, or refusing to admit, a will to probate, the circuit court may submit questions of fact to a jury, or not, at its discretion. ' (2) A verdict in such a case has substantially the same effect as a verdict, on a feigned issue in chancery; and if it is clearly contrary to the weight of evidence, refusal of a new trial is error.” [453] Mr. Justice Paine dissented on the ground that the verdict should have the same binding force as in actions at law. In a later case the will was admitted to probate by the county court without objection. One of the heirs at law appealed to the circuit court. Certain questions were submitted to the jury, who found in favor of the contestants. The trial court set aside the verdict of the jury and entered judgment admitting the will to probate. On appeal to this court the judgment was reversed, and the cause remanded with directions to enter judgment upon the verdict of the jury rejecting the probate of the will. Will of Slinger, 72 Wis. 22, 37 N. W. 236. We must hold that the contestant was entitled to a trial de novo in the circuit court. 2. It is claimed by the proponent that the appeal papers from the county court were insufficient to give the circuit court jurisdiction. This claim is made in this court for the first time. It is based upon two grounds. One is that it does not appear that Irving Bovee is in anywise interested in the estate. It does appear, however, in the petition for the probate of the will made by the proponent and executor named in the will and the opposing party in this action that Irving Bovee was one of the testator’s surviving next of kin and heirs at law; and it does appear from the will itself that Irving Bovee was the son of the deceased and a legatee named therein; and he is also named in the decree of the county court admitting the will to probate. It is also stated in the notice of appeal that said Irving Bovee is aggrieved by such order or decree of the county court. Thus, it appeared by the records of the county court, at the time of taking such appeal, that Irving Bovee was interested in the estate of the deceased. The' other objection to such jurisdiction of the circuit court is that such notice of appeal was not signed by Irving Bovee nor by any person by his' direction. It purports to be given by him and is signed “Barber Bros., Attorneys for Appellant.” The statute expressly authorizes “every person of full age and [454] sound mind” to “appear by attorney in every action or proceeding by or against him in any' court except criminal actions.” Sec. 2585, Stats. 1898. There is certainly no presumption that Irving Bovee was not of full age and of sound mind. He gave and signed the undertaking on suck appeal as principal, and the same was approved by the county court. We have no doubt but that the circuit court bad jurisdiction by virtue of the appeal. Manifestly, there was a mistrial. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.