Estate of Schæffner

Cole, J.

The administration of this small estate seems to have given rise to a great deal of unnecessary litigation and expense. It is now a matter of sincere regret that the cause is not in a position to enable us to put a construction upon the will and stop further contention over it. But it is not. When the case was here on a • former appeal ( 41 Wis., 260 ), we decided that the time for construing the will had arrived,' and that it was the duty of the ciucuit court to proceed on the appeal from the order of the county court, and construe the will. The cause was remitted to the circuit court for that purpose. The circuit court, however, on the last hearing, failed to execute the mandate of this court by construing the will, but merely ordered that so much of the order of the county court, dated January 8, 1875, as directs the executor to pay over to Edward Sohceffner the money remaining in his hands or under his control, on receiving a bond from the said Sohceffner as specified in the order, be reversed, but declined to pass upon any other issue raised, or to receive evidence upon such issue, for the reason that the executor had no interest in them. This view of the circuit court we deem incorrect. As a general rule, we suppose, whenever the pro *617 visions of a will are such as to render it proper for the executor to take the opinion of the,court as to its construction and the rights of parties under it, the executor is entitled to the aid of the court. In Heiss, Executor, v. Murphey, 43 Wis., 45 , the chief justice observes that it was not the mere right, it was almost the duty, of the executor to take the opinion of the court upon the construction of the will and the validity of the disposition which it purported to make of the testator’s property. The remark is as pertinent and true in this case as it was in the case in which it was made. The executor had certainly the right to ask the direction of the court as to who took the residue of the estate under the will, in order that he might discharge his duty as trustee. The question as to the meaning of the will came up on the final settlement of his account in the.county court. That court had then necessarily to construe the will in settling its order of distribution. It did put a construction upon it, and añade the order from which the executor took an appeal to the circuit court. Uo further construction has been given to the will, and the executor is left in the dark as to what disposition is to be made of the residue of the estate after the legacies are paid. It seems to us this is sufficient to show that the executor is interested in having the circuit court decide the appeal upon its merits and determine the meaning of the residuary clause.

Some of the questions discussed by the learned counsel for the executor on this appeal are res adjudicates. This court has already decided that the county court had jurisdiction to construe the will on ordering distribution of the estate; that proper notice of the proceeding had been given to the parties interested under the will; and that the county judge was not disqualified by anything appearing on the record from acting in the matter. But it is now claimed that the circuit court for Washington county had no jurisdiction of the matter, because there was a second change of venue on account of the prejudice of the judge of the circuit court. It is said that the statute does not allow a second change of venue on that around or for that reason. Whatever force there might be ir *618 tills objection under other circumstances, it is clear that the executor cannot insist upon it here. For he appeared in the circuit court for "Washington county without objection; took various steps in the cause which implied that that court had jurisdiction; and went to the hearing of the appeal on the merits. This amounted to a general appearance in that court, and waived all objection to the jurisdiction of the circuit court for Washington county. Montgomery v. The Town of Scott, 32 Wis., 249 ; Blackburn v. Sweet, 38 id., 578; Carpenter v. Shepardson, 43 id., 406.

It follows from these views that the order of the circuit court for Washington county must be reversed, and the cause remanded to that court for further proceedings according to law.

By the Court. — It is so ordered.

A motion by the respondent for 'a rehearing was denied.