Will of Pattison

The following opinions were filed February 9, 1926: Eschweiler, J. The respondent challenges the right of the appellants to be now heard on the ground that this court has no jurisdiction to hear and determine because of lack of an appealable order. Appellants, by their notice of appeal recited above, treat that which was designated by the trial court as his “decision and opinion” at the commencement, and his “findings and adjudications” at the end thereof, as an order merely and not as in the nature of a determination or judgment. Unquestionably it would have been better practice to have had the lengthy opinion and decision of the trial court followed by concise findings of fact and conclusions of law or by a brief determination or order upon the several precise issues presented before any appeal should have been attempted to this court. We think the trial court evidently — 296 — expected such procedure was to be followed from the expressions in his opinion cited above. The appellants, however, promptly filed their many exceptions to it, and took their appeal therefrom, treating it as an order rather than as being in the nature of a judgment or final determination, and have thereby presented quite a troublesome question. There is a substantial difference in substance, and should be in form, between orders or rulings of a trial court made during the proceedings, and which generally are not the subjects of the statutory right of appeal to this court, and his findings of fact and conclusions of law upon which a final determination or judgment can properly and regularly be entered, and upon appeal from which judgment prior orders in the proceedings may also be reviewed. The importance of determining the nature of that from which an appeal purports to be taken is evident when considering the many and recent times in which it has been declared that this court cannot obtain jurisdiction of attempted appeals except and unless the proceedings below and attempted to be reviewed are within the statute regulating appeals. Puffer v. Welch, 141 Wis. 304, 124 N. W. 406; Puhr v. C. & N. W. R. Co. 168 Wis. 101, 103, 169 N. W. 305; Walters v. Eakins, 172 Wis. 626, 179 N. W. 781; Hempel v. Hempel, 174 Wis. 332, 341, 181 N. W. 749, 183 N. W. 258. It is its substance and nature, rather than the name given to the proceeding either by court or parties, that must be the criterion in determining the question of appealability. Lemon v. Aronson, 166 Wis. 146, 164 N. W. 820; Tormey v. Gerhart, 41 Wis. 54, 57; Boynton v. Sisson, 56 Wis. 401, 402, 14 N. W. 373; 33 Corp. Jur. 1053; 15 Ruling Case Law, 571. If we consider the “opinion and decision” as being in the nature of findings, as it evidently was considered by the trial court, then it had not yet ripened into anything appealable. Tellett v. Albregtson, 160 Wis. 487, — 297 — 491, 152 N. W. 152; Menasha v. Wis. T., L., H. & P. Co. 161 Wis. 605, 155 N. W. 142; Greeney v. Greeney, 163 Wis. 377, 379, 157 N. W. 1097; Baker v. Bohnert, 158 Wis. 337, 338, 148 N. W. 1093. Appeals from the county court directly to this court are taken under the provisions of sub. 2, sec. 4031 (now sec. 324.01, Stats.), created by sec. 1, ch. 183, Laws of 1919, providing as to certain counties, including Douglas county, that any person aggrieved by any “order, judgment, decree, determination or denial of the county court shall have the right to have the same reviewed by writ of error or appeal from the county court to the supreme court.” This statute has been construed in the following opinions: Estate of Beyer, 185 Wis. 23, 200 N. W. 772, involved an order of the county court overruling a pleading, designated a demurrer, to a claim filed therein, and it was by this court held that an appeal would not lie from orders merely directory in the course of probate proceedings nor from orders not appealable under the provisions of sec. 3069, Stats., the one providing for appeals here from the circuit court, the material parts of which as to.certain appealable orders reading as follows: “(1) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken. “(2) A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment.” In Estate of Harter, 187 Wis. 90, 203 N. W. 720, an appeal was attempted from an order declaring the validity of adoption proceedings, and it was held that from such an order, being no part of a final decree distributing the estate, there could be no appeal; and in Will of Hughes, 187 Wis. 14, 203 N. W. 746, the right to review here an order — 298 — of the county court correcting its minutes and records was denied. If, therefore, the writing filed by the trial court on September 24th be considered as findings, we are without jurisdiction to review it. We reach the conclusion, however, that it may be properly treated as in substance an order, after hearing and upon due notice to all interested, passing upon and determining the issues raised as to the accounts of the trustees for the several years from 1910 to 1922 inclusive, none of which accounts had been approved and allowed or passed upon before this hearing. There still remains a question as to whether or not, if it be considered such an order, appeal to this court can be had under sub. 2, sec. 4031, supra. Under the express terms of the will in this case the trustees were required, as is recited above, to file annual accounts with the county court in the same manner as is to be done by guardians in the county court. If such annual reports be merely filed therein and no hearing upon due notice and no judicial action taken thereon, such accounts are still subject to supervision, allowance, or disallowance by the court when closing the estate, for ordinarily the entire subject of handling the estate from beginning to end is then still open for consideration. Estate of Wells, 156 Wis. 294, 312, 144 N. W. 174. On the other hand, where accounts are duly filed at intervals prior to final settlement, petition made for their examination and allowance, notice given to those interested and judicial action taken, any determination by the court upon the questions raised and presented on such hearing becomes final and conclusive unless challenged on appeal, and the time for appealing therefrom then begins to run (Will of Rice, 150 Wis. 401, 458, 136 N. W. 956, 137 N. W. 778), that opinion further stating (p. 467) that such an order protects the executors who act in good faith thereon, not bar — 299 — ring, however, any remedy that there may be against third persons improperly benefiting by such orders. In Schinz v. Schinz, 90 Wis. 236, 63 N. W. 162, cited in Will of Rice, supra, several accounts were filed and allowed, one in 1888 fixing the compensation of the executor, and such determination was held final and conclusive, except for fraud or mistake, when the review was had on the final account in 1891 (p. 248). A similar view was expressed as to the lack of right of one to review, at the time of entry of final decree, a sale of a homestead by an executor becoming interested therein, where the sale had been made several years before and then confirmed by the court, the title to the real estate involved having in the meantime vested by lapse of time in the purchaser. Will of Hoya, 173 Wis. 196, 205, 206, 180 N. W. 940. A Massachusetts statute provides that upon every settlement all former accounts may be opened to correct any mistake or error therein, except that any matter formerly heard and determined shall not again be brought in question without leave of court. This statute is said to be merely declaratory of the general rule in Wiggin v. Swett, 6 Met. (47 Mass.) 194, 198. The same ruling was had in Bennett v. Pierce, 188 Mass. 186, 189, 74 N. E. 360, holding that prior accounts may be passed upon in succeeding accounts for fraud or mistake only. In Lanman v. Lanman, 206 Mass. 488, 491, 92 N. E. 885, it was held that a former account, not having been allowed at the time it was filed, was still open for revision when the final account was presented many years thereafter. As a result of this view that the opinion and decision of the trial court of September 24th is in effect and substance an order disposing of the questions raised upon the several annual accounts, the petition to have the same allowed and — 300 — approved, and the objections by the respondent, then it follows that such order becomes final and conclusive upon the parties concerned, subject to right to review upon appeal, and cannot thereafter be challenged in the county court in future proceedings except for fraud or mistake. While such a proceeding as we are now reviewing may not literally meet the provisions of sec. 3069, Stats., cited above, for though it does not determine an action and thereby prevent a judgment from which an appeal might be taken under sub. (1) of said statute, were county court proceedings considered as being an action, nevertheless, this being a final order so far as the accounts were concerned, may well come within the second subdivision, supra, as affecting a right in a special proceeding. We do not now determine, because unnecessary, whether what was done in the court below was done in “an action” or in a “special proceeding,” as the two are differentiated in sec. 3069, supra, and in secs. 2593-2596 inclusive (now secs. 260.01 to 260.04). That the filing of a claim in county court does not constitute an action at law or suit in equity was held in Estate of Beyer, 185 Wis. 23, 28, 200 N. W. 772, supra. We deem it sufficient to say that the present proceeding is ap-pealable under sub. 2, sec. 4031 (now sec. 324.01), supra. The motion to dismiss the appeal must be denied. Upon the merits we are of the opinion that the trial court was right in holding as to the leases of the New Jersey and Haug buildings that the trustees so exceeded their authority and powers under the written trust that their accounts, so far as involved in such leases, cannot be approved. The trustees received, as accounted for in their report for 1922, net cash for the sale of the New Jersey building of $23,030.27 (being the $30,000 first payment less taxes), and $6,247.50 on the sale of the Haug building, and substantially these amounts were distributed that year to the various beneficiaries. Under these leases this was very — 301 — plainly a present payment on an agreement to sell the buildings and improvements in an attempted theoretical separation of the same from the real estate. That the trustees had no such power under the terms of the will and the judgment construing the same is very clear. These pieces of property on Superior street, Duluth, they were expressly prohibited from selling. Such restriction was an entirety, and necessarily extended to the buildings and improvements then part of the real estate in the eye of the law. However advantageous as a business transaction such provision in the lease may have been, it was a plain violation of the letter and spirit of the limitation imposed by the testator upon the powers of the trustees. This being a lawful restriction, the court supervising the trust can but enforce it. That these amounts with others subsequently to be paid on the agreed price for these improvements might have to be thereafter refunded by owners or lessors to these lessees is entirely immaterial. It was presently distributed to the present beneficial owners of the fee as proceeds from sale of an interest in real estate and must be so considered. If under any construction of this feature of the lease these payments for the buildings and improvements could be considered as in the nature of advance rentals, then they cannot be approved because violating another condition of the trust, viz. that prohibiting the receiving or settling for rents or royalties until they shall become due. The trial court also held that the leases were subject to disapproval because he considered them in effect leases for ninety-eight years and therefore beyond the limitation of the fifty years expressed in the trust. However, in view of the disposition we have made of this matter on the foregoing grounds, it is not necessary to pass on that feature, though there is much in the conditions of the leases, particularly in connection with the provisions for the renewal or extension and all the surrounding circumstances, to war — 302 — rant the trial court’s conclusions that the parties intended to evade or avoid the limitations of the trust in that regard. Respondent contends that the provision in the leases for the appointing of a bank as trustee to collect, hold, and disburse any insurance funds is such an attempted delegation of the functions of the trustees and surrender of their powers that it ought not to be approved. We do not, however, view it as subject to condemnation. As between lessor and lessee it is very proper to appoint some disinterested person to do such thing. In this case especially, where the trust as such must terminate by its own terms, and the trustees who made such leases cease to act at almost the very beginning of such long terms, the designation of a third person to then act when manifestly the trustees cannot is not subject to serious criticism. During the hearing and at the time of the trial court’s decision it was assumed that the third lease involved in the accounts, viz. that of the Giddings building to the Kelley Hardware Company, was similar to the others. It appears, however, that it is substantially different and but for forty-nine years. As to that lease, therefore, the ruling below must be reversed. By the Court. — Order modified by affirming as to the New Jersey and Haug building leases, and reversing as to the Kelley Hardware Company lease. Respondent to have costs here.