Will of Hyde

[464] The following opinion was filed March 17, 1914: BarNes, J. The circuit court held, in substance, that the final account filed was the account of both executors, that W. P. Hyde did not object to it as executor, but in the capacity of residuary legatee only, and that, having in effect asked the court as executor to allow the account, he had no such interest in this capacity as would entitle him to appeal from the order and judgment of the county court allowing the account. The respondent takes the same position in this court, and in addition urges that the judgment of the county court was right on the merits and that the appellant was not injured by the dismissal of the appeal. It is not necessary to decide whether an executor who presents and has allowed his final account can appeal from the order or judgment allowing the same entered at his request. It would be very farfetched to say that the executor, W. P. Hyde, did anything of the kind. He did not participate in the preparation of the account; it was not signed nor verified by him; and the verification by the co-executor does not state that it was made in behalf of both executors. Hyde apparently took very little part in the administration of the estate. He was in the office of .Yeeder & Yeeder a couple of times. The first time he apparently wanted some other attorney to represent him. The next time he examined the account and thought or guessed it was all right. But on the date fixed for the hearing on the account he was in court with an attorney representing himself and T. E. Hyde as residuary legatees and made a sharp contest on the account, and a large amount of testimony was taken on the objections filed. It can hardly be said on these facts that he was asserting the correctness of the account in his capacity as executor and objecting to it in his character as residuary legatee. If it were necessary for him to file formal objections to the account as ekecutor, the objections filed might well be treated as having [465] been made in such capacity as well as that of residuary legatee. It would he very technical to hold otherwise. There can be no question about the intention of Mr. Hyde in the matter. Neither is there any doubt about the right of an exeóutor to appeal from an order or judgment of the county court which in his judgment does injustice to a residuary legatee. Sec. 4031, Stats.; McKenney v. Minahan, 119 Wis. 651, 654, 97 N. W. 489; Cowan v. Beans, 155 Wis. 417, 144 N. W. 1129. Nor is there any doubt about the right of Hyde to appeal as executor without the consent or participation of his co-executor. Luscombe’s Will, 109 Wis. 186, 196, 85 N. W. 341. It follows from what has been said that the appeal was properly taken. The respondent insists, however, that the decision of the county court was manifestly correct and that therefore the appellant was not prejudiced by the judgment dismissing the appeal, the error being technical and affecting no substantial right. It would be carrying the rule by which we refuse to reverse except for prejudicial error beyond all reasonable bounds to apply it here. There was a sharp contest in the county court on the reasonableness of the attorneys’ fees charged for services in the different courts. The appellant is contending that since ch. 397, Laws of 1901 (sec. 4041a, Supp. 1906), was amended by ch. 231, Laws of 1909 (sec. 40416, Stats. 1913), the county court has no power to fix the amount of attorneys’ fees recoverable on a will contest in the circuit court and that it never had the power to fix the amount that should be paid on such a contest in this court. . It does not appear whether or not the executors had actually paid for the services rendered by the attorneys. We think the appellant is entitled to a hearing in the circuit court on the reasonableness of the charges. If the fees for services in the circuit and supreme courts have not been paid, then the appellant has the [466] right to be heard on the power of the county court to fix the amount of such fees and to order them paid. If the attorney fee in these courts has been paid, then the appellant has the right to have the circuit court determine whether the executors were properly authorized to make the payment. By the Court. — -The judgment appealed from is reversed, and the cause is remanded for further proceedings according to law. A motion for a rehearing was denied, with $25 costs, on June 17, 1914.