Jones v. Roberts

Oassoday, J.

The will of Robert Jones was admitted to probate September 4, 1883, pursuant to an order of the county court made July 27, 1883, wherein it was “ordered that the proofs of said instrument be heard” at the time and place named, and “ further ordered that notice of the time and place of such hearing be given to all persons interested, by publishing a copy of this order for three weeks, successively, previous to said day of hearing,” as therein provided. Such notice was given as prescribed by statute. Sec. 3787, R. S. That section authorized all persons “ concerned ” to “ appear and contest the probate ” , of the will. The statute also provides that, “ when a will shall have been duly proved and allowed, the county court shall issue letters testamentary thereon to the person named executor therein, if he is legally competent and shall accept the trust and give bond as required by law.” Sec. 3792. On the same day on which the will was so admitted to probate, and without any notice other than the one mentioned, the county court ordered the executrix to give the bond, and she gave the same, and the same was then approved, and thereupon and on the same day letters testamentary were issued to her therein as mentioned in the foregoing statement.

It is contended, and the trial court held as a matter of law, in effect, that such adjudication of the county court in ordering, receiving, and approving such bond was a final determination of the proceedings instituted to probate said will and to administer said estate of Robert Jones; and that thereupon, and by virtue thereof, there ceased to be any such estate to be administered upon, or any proceedings pending in said county court to warrant the appointment of an administrator de bonis non. The theory of such deter *470 mination seems to have been that the mere ordering,' receiving, and approving the bond ipso faoto vested the title to the whole estate, both real and personal, in the executrix absolutely and irrevocably. The section of the statute relied upon to work such a remarkable transfer provides that, “ if the executor shall le sole or residucury legatee, ... he may give a bond, in such sum and with such securities as the court may direct, with a condition only to pay all the debts and legacies of the testator, and in such case he shall not be required to return an inventory.” Sec. 3Y95.

Assuming, for the purpose of this appeal, that the word “legatee,” as used in this section, may be construed so as to include a devisee,— a question not here determined,— still we are constrained to hold that it is only when, by the terms of the will, the executor is such “ sole or residuary legatee,” and the same is judicially determined upon due notice and opportunity for hearing, that such transfer becomes complete in law; in other words, such transfer is effected, if at all, by virtue of the provisions of the will as construed by the court upon such notice and opportunity for hearing, and not merely by reason of ordering, receiving, and approving of a bond of a particular form. Here, as indicated, the only notice was that given for the probate of the will. Such probate of the will is made, by statute, “conclusive as to its due execution.” Sec. 2294. It implied that the instrument probated was in the form of a will, but called for no construction of the provisions of the will, — certainly none which was binding upon the rights of the parties under the will. True, it may be inferred from the ordering, receiving, and approving of said bond that the county judge was of the opinion that the executrix was such “ sole or residuary legatee ” of the personal property, if not of the real estate; but such mere inference cannot bar those claiming under the will from a right to a hearing on the subject upon due notice. Besides, the bond, as well as the *471 letters testamentary, contemplated further proceedings in the county court in the settlement of said estate.' It is the office of an executor to execute the will of the testator. The statute provides that after the payment of debts, funeral charges, and expenses of administration, and after deducting all the allowances therein provided for, “ the county court shall, by an order or judgment, assign the •residue of the estate, if any, to such other persons as are by law entitled to the same. . . . Such order or judgment may be made on the application of the executor or administrator, or of any person interested in the estate.” Sec. 3940, S. & R. Ann. Stats. The effect of such order or judgment of distribution is not to transfer the title, but to determine the persons entitled to the property, and their respective interests therein. Gillett v. Treganza, 13 Wis. 472 . But even such order or judgment is not conclusive as against those claiming under the will, without notice or opportunity of being heard. Bresee v. Stiles, 22 Wis. 120 ; Ruth v. Oberbrunner, 40 Wis. 238 ; Appeal of Schaeffner, 41 Wis. 260 , 45 Wis. 614 ; Loring v. Steineman, 1 Met. 204 ; Pierce v. Prescott, 128 Mass. 144 . This being so as to a direct adjudication, necessarily calling for a construction of the will in the assignment and distribution of the estate, must, for a much stronger reason, be so where the construction is merely incidental and collateral and confessedly without any notice.

It necessarily follows from what has been said that the estate of Robert Jones, deceased, has never been settled,— certainly not as to the remainder of the two thirds of the estate. By the portion of. the will contained in the foregoing statement it will be observed that the testator gave, devised, and bequeathed to his wife all of his estate, “ to have and to hold the same to her, for and during the term of her natural life, with remainder thereof, on her decease,” as thereinafter named. He then therein directed his wife *472 “to give, devise, and bequeath two thirds” of such remainder to all or some of his “ nearest relations, to have and to hold the same to them, their heirs and assigns, forever,” with power in the wife to divide such two thirds among such of his “ nearest relations ” as might seem to her to be reasonable. Manifestly, the will thus created a trust for the benefit of a class. Secs. 2121, 2122, R. S. Such trust was not prevented from being imperative merely because the wife had the right to select some of the class and exclude others. Secs. 2123, 2124, R. S. Where there is a disposition to a class, without any specification as to the share of each, all the persons designated are entitled to an equal proportion. Sec. 2125, R. S. The statute further provides that, “ if the trustee of a power with the right of selection shall die leaving the power un-executed, its execution shall be adjudged in the circuit court for the benefit equally of all the persons designated as objects of the trusts.” Sec. 2127, R. S. The mere fact that the wife died without exercising the power of selection did not deprive such “ nearest relations,” as cestuis que trustent, of their rights under the will. It follows that at least two thirds of such remainder either passed to such “nearest relations ” of the testator, or else was undisposed of by the will. ' In either event such “ nearest relations ” are entitled to the appointment of an administrator de ionis non with the will annexed.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to reverse the order of the county court, and for further proceedings according to law.