Will on Dardis

[461] Tlie following opinion was filed March 10, 1908: Dodge, J. The very earnest contention of appellants-that, when all parties to a litigation stipulate or consent to 'certain action by the court, such stipulation should be carried into effect is undoubtedly correct as a general proposition, though obviously with some limitations-. Eor example, a court could not be compelled to stultify itself by solemnly adjudging an absurdity or a falsehood because parties stipulated for such act. Independently, however, of whether a court must always solemnly adjudicate a fact agreed on by all parties in interest, doubtless it should give effect to a stipulation so far as it affects the individual rights of the parties thereto-. It is also doubtless true that parties to- any proceeding, although not all the parties, may by their stipulation or consent preclude themselves individually from setting up any rights in opposition to such stipulation. The trouble, however, with appellants’ position in this case is that no stipulation was presented to the court signed by all parties in interest. The probate of a will is a proceeding in rem,, to which all the world are in some sense parties. Of course, like- any other such proceeding, it also affects specific individuals, and therefore is inter partes as to such individuals. But in addition to its effect upon the rights either of the heirs of the alleged testator or of the legatees-, the adjudication of the question whether a given script is or is not the will of the decedent may affect many other rights and interests which cannot be ascertained in advance of. such adjudication. Thus, for example, any will devising real estate takes effect at the death of the testáto-r and may, at the moment of such death, create actual vested rights or liens in judgment creditors of the devisee. Scott v. West, 63 Wis. 529, 24 N. W. 161, 25 N. W. 18; In re Will of Langevin, 45 Minn. 429, 41 N. W. 1133. Upon probate of .the will there is no opportunity to ascertain whether such rights exist, but. [462] the holders of them are parties to the proceeding in the sense that they are hound by the adjudication by virtue of the general publication of notice. Indeed, even more remote rights may exist. General creditors of legatees may have a right to question the bonai fides by which such legatees surrender any portion of their property after the right to it becomes vested, and no court in which a litigation to that end might be instituted has any power to pass on the existence and validity of an alleged will; especially would it not have such right after such will had been adjudged no testament by the probate court having that jurisdiction, although proceeding upon a stipulation of certain parties in interest. It is for reasons like these that the courts have uniformly held that the proceeding to probate a will is a proceeding in mm, binding all the world, and in which even public welfare and policy is involved. The view that public interest requires that a valid will be established, independently of the wish of those parties specifically named therein, is evinced by various statutes in this state. By see. 4505, Stats. (1898), it is made a crime to conceal or suppress a will by any person, whether with or without the consent of parties therein named. By secs. 3184, 3785, and 3786, Stats. (1898), a positive duty is imposed both upon the county judge as a public officer, upon the person named as executor in any writing purporting to be a will, and, indeed, on any person having custody of such will, to take steps to bring the question of its validity before the proper probate court; and by sec. 2296, Stats. (1898), the absolute requirement is made that every will of real estate admitted to probate shall, with evidence thereof, be spread upon the public records. All these steps are imposed by law wholly independent of the control of those privately interested. They evince a clear recognition and declaration of the legislature that there is a public policy involved in the establishment of every legally executed will. [463] Apart from the interest of the public there is also recognized by the courts an interest and right of the testator to have the directions of his will carried into effect, at least upon some subjects. His right is recognized to direct at least the method of management and disposal of his property. after his decease, which courts cannot he compelled to disregard to accommodate the wishes of some or even all parties having pecuniary interest in the property. Dodge v. Williams, 46 Wis. 70, 90, 1 N. W. 92, 50 N. W. 1103; Bussell v. Wright, 133 Wis. 445, 113 N. W. 644. Whether a will contains any directions of the sort thus protected against modifications by the beneficiaries is a question which can only arise after the probate proceeding is complete and the existence of the will has been established, but, apparently, this will commands a method of sale of the real estate which can be given effect only by its probate. Counsel for appellants cites us to two decisions apparently holding that a probate court- should regard the stipulation of the nominal parties in interest in making its decision: Stringfellow v. Early, 15 Tex. Civ. App. 597, 40 S. W. 871; Lloyd's Estate, 24 Pa. Co. Ct. Rep. 567. We cannot approve the reasoning of these cases. They are addressed both of them to consideration whether an individual who had stipulated could be heard in court in repudiation of his stipulation, and thus was obscured the considerations which we have above suggested of the possible interest of unknown parties and of the existence of a public .policy to protect them. The Texas case is based upon a remark in Phillips v. Phillips, 8 Watts, 195, to the effect that the parties in interest before probate might consent to the suppression or destruction of a will; the remark in the latter case being wholly obiter. Whether this might be so in Texas or in Pennsylvania, we think, as already stated, there are declared and obvious reasons of public policy in Wisconsin which preclude such a doctrine. This conclusion seems to be supported by [464] tbe great weight of authority. Syme v. Broughton, 85 N. C. 367; Hutson v. Sawyer, 104 N. C. 1, 10 S. E. 85; In re Will of Young, 123 N. C. 358, 31 S. E. 626; Allison v. Smith, 16 Mich. 405, 415; People ex rel. Frazer v. Wayne Circuit Judge, 39 Mich. 198; In re Valentine's Will, 93 Wis. 45, 61 N. W. 12; 1 Woerner, Adm’n, § 228; Gary, Prob. Law (3d ed.) § 194. We conclude that the stipulation in this- case could not control the duty which the probate court owed to the public,, and perhaps to the testator, to adjudicate as to the legal existence of the propounded document as a will: to- establish its status. Hence the judgment is proper in the absence of other grounds of attack. By the Court. — Judgment affirmed. 'A motion'by the appellants for a rehearing was denied May 8, 1908, and the mandate was amended by adding thereto as follows: “the costs taxed against the appellants in this court to be paid out of the estate.”