Farmer v. Sprague

Cole, C. J.

The testatrix, in the will of June 4,1878, expressly revoked all former wills. That will would probably have operated as a revocation of any former will without words to that effect, since it made a complete disposition of the estate of the testatrix, both real and personal. Assuming the last will to be valid, there can be no doubt about the correctness of the legal conclusion of the circuit court, that it was entitled to be admitted to probate, but that the first will was not. But in admitting it to probate the circuit court impressed upon the will the trust or charge of the first will, except in respect to the legacy of $100, given to her *327 brother. The executor named in the last will' appeals from that portion of the judgment which subjects the estate of the testatrix to the bequests of the first will. His counsel insists that the sole issue before the court was whether the will of June 4, 1878" should be admitted to probate. He says that all other questions, such as the construction of that will; whether there was any claim or trust upon the estate to be enforced contrary to its provisions; and as to the proper disposition of the property of the testatrix,— did not enter into that iésue, and should not be considered when determining the probate of the will.

It seems to us this position of counsel is sound. It is obvious the sole question for decision in the circuit court on the appeal was whether the decree of the county court'admitting to probate the first and refusing to probate the last will was correct. The circuit court decided that it was not; that the evidence showed that the last will was the one entitled to probate; So it will be seen the real point before the court and decided was as to the due execution of the last will. That question being disposed of, no other question was legitimately before it for adjudication. Why, then, should the issue, whether the testatrix was of sound disposing mind when she made that will, and whether that testamentary instrument was so executed as to meet the statutory requirements on the subject, be embarrassed by a consideration of other questions not'properly connected with it. It is true, the contestants of this will claim that the testatrix had made a valid agreement binding herself to make a particular disposition of her property by her will, and different from the one she did make therein. Admit that such an agreement was made, it was not proper to enforce it on probating the will. The agreement, if one which should be enforced, can be carried into execution after the will is admitted to probate. It is not necessary that the agreement be enforced at *328 the same time and in the proceeding for the probate of the will. After the will is probated the court can determine, in a proceeding instituted for the purpose, whether or not the testatrix had put it out of her power to make the disposition of her property she did by the will. But it seems very objectionable to unite the issue whether the will should be probated, with the question whether the testatrix had entered into a legal obligation to make a particular disposition of her estate in her will; or, rather, to blend these issues together and enforce the agreement in probating the will. The construction of the will, and what shall be done with the estate, are matters for future consideration.

The questions whether the will should be admitted to probate, and whether a valid agreement had been made by the testatrix which should be enforced, are quite distinct, and cannot well be adjudicated in the same proceeding. And it is plain that the rights of the party claiming the estate under the alleged contract will be in no way prejudiced or affected by the order of the court admitting the will to probate. It must be understood that the right to enforce the contract is expressly saved or reserved to such party notwithstanding this decision.

It was said on the argument that the circuit court, in imposing in this proceeding a charge or trust on the estate of the testatrix in favor of Clara J. Farmer, relied on the case of Brook v. Chappell, 34 Wis., 405 , to sustain its judgment. But that case is not an authority to sustain its action, as was clearly shown by appellant’s counsel. In that case the will had been admitted to probate. Afterwards, in a proceeding instituted for the purpose, one of the executors asked for the •probate of a nuncupative codicil to the will already probated. This court decided that the nuncupative codicil could not be admitted to probate, but that the county court, instead of the relief asked for, might recognize and enforce a trust in *329 favor of the petitioner, against the residuary legatee and other executor named in the will. But that case is quite unlike this.

By the Gov/rt.— That part of the judgment of the circuit court appealed from is reversed, and the cause is remanded for further proceedings in accordance with this opinion.