Parsons v. Balson

Eeewik-, J.

1. The first error assigned is the refusal of the court to dismiss the appeal for want of prosecution. Sec. 4038, Stats. 1898, provides that, if the appellant shall fail to prosecute his appeal with reasonable diligence, the circuit court, on motion of any person interested, shall dismiss the appeal or affirm the judgment or act appealed from, as such court shall deem just. The question presented here under this assignment of error is whether the court below abused its discretion in refusing to dismiss the appeal. It appears from the record that the appeal was pending for about five years before the motion to dismiss was made, but it also appears from the record and affidavits used on the motion for dismissal that substantial grounds existed for the delay. The time during which the appeal was pending was largely consumed in the litigation of other matters, notably the contest over the adoption proceedings of Lafayette B. Parsons, respondent, which contest was litigated through the county and circuit courts and finally determined in this court. It was quite reasonable that the litigation over the adoption of respondent should be finally settled before proceeding with the appeal. There was also litigation over the guardianship of Cynthia A. Parsons, the widow, and a contest over her will; also other litigation and negotiations for settlement, all of which consumed considerable time, as appears from the record, and which was embraced within the period of time now complained of. There was also destruction of papers and other matters referred to by the circuit judge in his opinion as tending to show that there was no unreasonable delay in *316 tbe prosecution of tbe appeal. Without further discussion upon this branch of the case, we think the showing made upon the motion to dismiss the appeal was amply sufficient to justify the court below in denying the motion. Cavanaugh v. Scott, 84 Wis. 93 , 54 N. W. 328 ; Carberry v. German Ins. Co. 86 Wis. 323 , 56 N. W. 920 ; Kropp v. Kropp, 97 Wis. 137 , 72 N. W. 381 ; Fleming v. Ellison, 124 Wis. 36 , 102 N. W. 398 ; McCann v. Welch, 106 Wis. 142 , 81 N. W. 996 .

2. It is further claimed by counsel for appellant that the power of the county court to vacate the order or judgment'in question was limited to one year after knowledge of the entry of such judgment or order, and several cases are cited upon this proposition. The general principle of law, as laid down in the authorities cited, does not apply where the order or judgment is attacked on the ground of want of jurisdiction or fraud. The court below found there was both want of jurisdiction and fraud, hence the one-year limitation did not apply. We need not stop to consider whether or not the petition for the jrobate of the will of Henry D. Parsons as a lost will under the statute was sufficient to vest the county court with jurisdiction, because we are satisfied that the petition presented .to the county court asking that the order probating the will -be vacated and set aside made a case which entitled the petitioner to relief upon the ground of fraud, and that the landing of fraud is supported by the evidence. The petition showed the execution of the will of ITenry D. Parsons June 15, 1876, the birth of respondent July 10, 1876, and his adoption on the 10th day of November, 1887; the destruction of the will April 5, 1887, with the knowledge of Henry D. Parsons, and the survival of said Parsons for a period of three years after the destruction of the will; his failure to make another will, although expressing his intention so to do, and his death on the 22d day of July, 1890; that at the time of hearing on petition to probate the will respondent was a minor about fourteen years of age; that both *317 his general guardian and guardian ad litem were present at the hearing, but made no objection to the probate of said will, and practically admitted that said destroyed will was the last will and testament of the deceased. It seems very clear that the failure of the guardian ad litem, who was appointed to protect the interests of the minor, to make any defense or oppose the probate of the will resulted in the making of the order. It is difficult to believe that, had the matter been properly presented to the county court, such order would have been made. It is quite clear from the record that there was no wilful misconduct on the part of the guardian ad litem or any person connected with the proceedings, but it is, equally clear that the interests of the minor were left wholly unprotected. It was doubtless a case of failure on the part of the guardian ad litem to investigate the questions involved in the litigation, or call the attention of the court to the rights of the infant, and in consequence of such neglect and inattention he suffered the will to be probated, which will gave all the property, after payment of the debts and funeral expenses, to the widow. Upon the undisputed facts the will was not entitled to probate, and the failure of the guardian ad litem to call the attention of the court to such fact, therefore, obviously was at least a constructive fraud upon the infant. It was plainly the duty of the guardian ad litem, as an officer of the court and occupying a position of trust, to seasonably, investigate the questions respecting the infant’s rights in the matter and draw them to the attention of the court in order that such rights might be properly protected. Tyson v. Richardson, 103 Wis. 397 , 79 N. W. 439 ; Carty v. Connolly, 91 Cal. 15 , 27 Pac. 599 . In. Forker v. Brown, 30 N. Y. Supp. 827, 828 , the court said:

“Fraud, in law, is of two kinds — actual and constructive. The former arises from deception practiced by means of the misrepresentation or concealment of a material fact; the latter, from a rule of public policy, or the confidential or fidu *318 ciary relation which one of the parties affected, by the fraud sustained towards the other. It is a constituent of actual fraud that the party alleged to have been defrauded was deceived. Lefler v. Field, 52 N.Y. 621 . No positive dishonesty of purpose is required to show constructive fraud.”

Within about two months after the minor attained his majority he promptly made application to the county court to have the order probating the will vacated, and we think the showing made was ample to warrant the court in taking jurisdiction and vacating the order, although long after expiration of one^year from the. time of its entry. Estate of Leavens, 65 Wis. 440, 447 , 27 N. W. 324 ; Beem, v. Kimberly, 72 Wis. 343 , 39 N. W. 542 ; In re Fisher, 15 Wis. 511 ; Estate of O’Neill, 90 Wis. 480 , 63 N. W. 1042 ; Clyce v. Anderson, 49 Mo. 37, 41 ; Mills v. Smith, 19 N. Y. Supp. 854 ; Ferguson v. Lowery, 54 Ala. 510 ; In re Steele, 65 Ill. 322 ; Bond v. Lockwood, 33 Ill. 212 ; 8 Am. & Eng. Ency. of Law (1st ed.) 647, 648. The point is made by counsel for appellant that fraud is not alleged, but the facts constituting a constructive fraud are alleged, and this is sufficient. Eraud is a conclusion of law. Crowley v. Hicks, 98 Wis. 566 , 74 N. W. 348 .

3. Coming to the merits of the case, the question is whether the court below was right in vacating the order of the county court admitting the will to probate and setting aside the order assigning the real estate to the widow, Cynthia A. Parsons. Although some evidence was offered in the court below, the facts set up in the petition are undisputed and found by the court. The first question arising is whether upon these undisputed facts the alleged destroyed will could be admitted to probate under the statute. 7 It is argued that sec. 3791, Stats. 1898, contains no limitation, and provides that, whenever any will of real estate or personal property shall be lost or destroyed by accident or design, the county -court shall have power to take proof of the execution and validity of such *319 ivill and establish, the same. But the statute must'have a reasonable construction in furtherance of justice and the object of its enactment. The question in all cases of reproduction! of destroyed wills under this statute is whether the circumstances of destruction and acquiescence amount to a revocation. It would seem that the rule most consonant with the statute is that if knowledge of the destruction of the lost will be not brought home to the testator within such time as would rea-, sonably enable him to reproduce it, or if he was prevented/ from so doing, it might be probated upon proper proof of the facts; but where reasonable time elapses after knowledge of \ the destruction, coupled with opportunity to reproduce the destroyed will, a presumption of revocation arises, and, the destroyed will cannot be admitted to probate. In the ease before us there is nothing to rebut the presumption of revocation. The destruction of the will three years before the testator’s death, with his knowledge, together with the adoption of Lafayette B. Parsons after such destruction, revoked the will; hence there was no will which could have been admitted to probate as a lost or destroyed will. In re Valentine’s Will, 93 Wis. 45 , 67 E. W. 12; Glascott v. Bragg, 111 Wis. 605 , 87 E. W. 853; Gavitt v. Moulton, 119 Wis. 35 , 96 N. W. 395 ; Estate of Deaves, 140 Pa. St. 242, 21 Atl. 395 ; Thornton, Lost Wills, § 19.

4. It is further claimed that the court erred in allowing the petition to be amended so as to set up the claim of petitioner as being an after-born child, and asking that the order assigning the real estate of Henry H. Parsons to Cynthia A. Parsons be vacated and set aside. The original petition gave the county court jurisdiction of these matters; hence it was proper to allow the amendment, or the court could have granted the relief without the amendment. Brook v. Chap pell, 34 Wis. 405 . It is also argued that no appeal was taken from the order assigning the real estate. That was clearly unnecessary. The appeal from the judgment refusing to set *320 aside the probate of the will brought up the whole matter. The judgment assigning the real estate depended upon the probate of the will, and fell with the judgment setting such probate aside, at least so far as the questions involved upon this appeal are concerned. But it is said that rights vested by limitation under the judgment of probate in the devisees of Cynthia A. Parsons. Such parties, however, are not before this court upon this appeal, and their rights, therefore, cannot be considered. Even if the will were valid and entitled to probate, still, upon the undisputed facts, the respondent would be entitled to the rights of an after-born child, and even upon that phase of the case the judgment of the court below was right. Glascott v. Bragg, supra; Sandon v. Sandon, 123 Wis. 603 , 101 N. W. 1089 . It follows that the judgment must be affirmed.

By the Court. — The judgment of the court below is affirmed, and the cause remanded.for further proceedings according to law.