Cowie v. Strohmeyer

136 N.W. 956, 150 Wis. 401, 1912 Wisc. LEXIS 220

• Court: Wisconsin Supreme Court
• Decided: October 8, 1912
• Status: Published

Opinion

The following opinion was filed June 19, 1912:

Makshall, J.

For the foregoing picture, we venture to say, there is no precedent in the history of judicial distributions of the estates of deceased persons. There was a will,— a model for brevity, conciseness, and clearness, considering the magnitude of the estate and number of persons to be remembered efficiently. It is not claimed, and could not well be, that there was any ambiguity in the instrument from the opening lines to the closing of the fourth codicil. Scrupulous care was exercised to avoid uncertainties and guard against danger of interference with the testamentary scheme upon the ground of ineompetency or undue influence. The testator had reason, sufficient' in his judgment, for any distinction made between the two branches of his family, for not making much provision for his son or daughter, and for removing his estate so far beyond their control as to insure its reaching the grandchildren in their full maturity. That, in general, he exercised wisdom'is demonstrated by the record. . In the proceedings to displace the testamentary scheme, incapacity is seen in both families to handle the property, as suggested in the will. . Mrs. Cowie rather corroborated the testaméntary declaration as to her husband by declaring that neither she nor he possessed any property or means whatever and that both were so heavily in debt that they needed immediate relief out of the estate. Here, we may well say in passing, Mr. Cowie later laid claim to well nigh $7,000 from the estate and, by agreement with the’ attorneys representing the executors, obtained over $3,000.

The whole history of the case shows that Mr. Rice well understood what property he had, its value, how much he owed, and necessity for disposing of his estate in some such way as he did to prevent its being wasted; that, instead of acting from impulse or mere prejudice, he was moved by deliberate judgment, the will bears evidence and subsequent events vindicate, circumstantially. He evidently realized that discrimination between the two branches of the family and failure to make larger provision for his two children might, unexplained, give rise to dangerous and expensive attempts to disturb his scheme when the time came for executing it; so, he made such explanation on the face of the will. To further guard against it being claimed the will was not his own deliberate act with full appreciation of all moral rights to share in his bounty, a year after it was first executed he added a codicil, putting a favorite grandson, — a child of his daughter Mrs. Cowie, — on the same basis as to direct benefits as the children of his son Frank, with such valuable contingent rights as to succeeding to the provision made for the latter’s children as to place the two families quite nearly on a par. Frank was then alive and he and the daughter, personally,, were treated substantially alike, the dominant idea in the scheme being, from the first, to preserve the estate for the grandchildren. With this material change the will was, inferentially, ratified and re-executed.

After some six months’ further deliberation, for greater certainty that his scheme would be understood and executed, particularly the dominant feature that the corpus with its accumulations should be held in trust for the benefit of his grandchildren till such time, in all reasonable probability, if ever, as it would reach them without interference from the parents on either side and they would be competent to look after their interests, he made a, second codicil postponing distribution till the death of Erank and the arrival at the age of thirty years of his youngest grandchild on either side, declaring his intention, more specifically, as to the termination of annuities, explaining and affirming some changes made by interlineations in the first codicil, and expressly reaffirming, the will as first drawn sub ject to'the changes wrought by the two codicils.

. Some two weeks thereafter, the will was a third time, inferentially, reaffirmed by the addition of a third codicil in which further provision was made to preserve that portion of the estate set aside, absolutely or contingently, for the branch of his family represented by his daughter; giving the brother and sister of Lloyd (Beebe) Gow'ie the right, contingently, to succeed to his right and a right of succession between themselves and right of Mrs. Cowie to take as successor of her daughter in respect to previous provisions made for the latter, in case of the daughter dying during the existence of the trust.

About three weeks later, and a short time before his death, Mr. Rice made a fourth and last carefully drawn codicil, making provision, in minute detail, for the Masonic body of whichi he, presumably, was a member — taking occasion again to expressly reaffirm the will and codicils. He took further precaution to consult with his confidential friend, Strohmeyer,. respecting his scheme and exact an opinion that it was legitimate and could be carried out.

So it will be seen that the two branches of Mr. Rice’s family were treated, from his standpoint, alike, so far as due conservation of the property for the benefit of the grandchildren would permit. The thought was that, in no event, should there be any very considerable distribution of either principal or income during the life of his son Erank, nor till his youngest grandchild should come to the age of thirty years, a period of some seventeen years from the time the will was made. . The reasons therefor are so circumstantially ap~ parent that the fact itself casts no suspicion upon the will. If there were any difference in the treatment of his two children, personally, the odds were in favor of Mrs. Cowie.

The foregoing history, with other matters to be referred to later, is appropriate, bearing on the question of the legitimate services required, or permissible, in the settlement of Mr. Rice’s estate, and the limit of reasonable expense therefor, which is one of the main subjects for consideration on this appeal,. and with reference to other matters material to the case.

It seems, from the foregoing and what occurred with reference to the will, that Mrs. Cowie was interested in having the will set aside, not so much because she was personally dis■criminated against as because she thought her,three children ■were not favored equally with the Bice children, and, because ■•the estate was put entirely beyond her reach and that of any ■of her children for.a long term of years. To set aside that dominant feature of the scheme, all parties were interested, ■■though not, perhaps, in equal degree, and to accomplish it, all ■co-operated as the statement of facts shows, including those ■acting by guardians ad litem, executors, and their attorneys ns well.

The proceedings to contest the will in the county court appear to have been merely pro forma. There was no one pecuniarily interested, particularly,' to sustain it as the beneficiaries looked at the matter, because enjoyment of the estate by them was so remote. There was no one whose duty it was to sustain it, if practicable, except the executors, their attorneys, the guardians ad litem, and the court. An imperative duty rested there. Just what occurred does not appear; but, it sufficiently does that no showing was made adverse to the will which appeared to the judicial mind at all serious. Probably none other than of a most formal character. Chief reliance seems to have been placed on proving that Mr. Rice was mistaken in thinking his daughter was subject to be unduly influenced by ber husband. Very little evidence was offered aside from the usual formal proof. There were arguments, principally by Mr. Ryan for the contestants and Mr. Bohr for the executors, — whether there were others does not definitely appear; but, the indications are that the whole proceeding was comparatively brief and substantially featureless as regards anything questioning the validity of the will, except for an address by Mr. Ryan. He testified respecting what was done, as also did Mr.- Balvr, without stating that anything occurred showing serious attempt to impeach the will, except, possibly, the address by Mr. Ryan. He testified to having, in his judgment, “made a fine effort,” but must have appreciated that the will could not be defeated by mere oratory, or except upon clear, convincing evidence that it was not really Mr. Rice’s testamentary disposition though it was such in form. Evidently there was ño such showing as the objections were almost summarily overruled.

Presumably, from the record, had the settlement of the estate proceeded in an orderly and ordinary way after the event last described, it would have been quite a simple matter. Eliminating the claim of Mrs.- Cowie, which was withdrawn, and the large claim of $45,000', which was really not a personal debt of Mr. Rice’s, though, perhaps it might have, in any event, reached his estate, indirectly, there were very few debts considering the size of the estate. The work and difficulties subsequent to the allowance of the will were caused, mainly, by the colluding together to destroy it and substitution in place thereof of a scheme to suit the notions and necessities of the Oowie family and the Rice family, with, seemingly, incidental large benefits to attorneys and guardians ad litem.

As regards any will contest on legitimate lines, the proceedings in the circuit court were more featureless than those in county court. They impress one, strongly, with the idea that none of the attorneys or the court thought the testament could be treated as invalid on any evidence which was producible. Nothing occurred indicating a serious purpose of really impeaching it in a legal sense. The evidence given was not aimed at any such purpose. The reasons given by the leading spirit in the affair, Mr. Ryan, for displacing the testamentary scheme, — that it was complicated, difficult to carry out, left the property not vested in any one in particular for a long time and so as to render it useless to many interested, and that he had labored hard to arrange a different disposition of the estate, — can.hardly be taken seriously from the standpoint of what was really involved in the appeal. There was no difficulty at all about the vesting of title or about carrying out the testamentary plan, — none whatever. The difficulty complained of as to the parties not being able to enjoy the property for a long time, and, possibly, some of them not at all because of their not surviving the trust, was just what the testator contemplated and had a right to have carried out. It is difficult to see how the court could have been influenced by Mr. Ryan’s suggestion along that line, or the added one that he had been to a large amount of labor to perfect an agreement between all parties for substitution, in place of the testator’s plan, of one agreeable to themselves. Just as valueless for any legitimate purpose in a will contest, was the testimony of Mrs. Gowie that she needed a part of the estate for her immediate necessities, and that of Mrs. Bice to the same effect, and the testimony of both, under the prompting of attorneys, including those for the executors, that the Bice children would not probably survive the trust period and so would not receive any benefit from the estate if the income were tied up according to the testamentary scheme. Those circumstances had nothing to do with the question of whether the purported will of Mr. Rice was his •in fact and should be carried out. They rather tended to explain why he made the will as he did. He evidently appreciated, fully, that want of business competency led to the condition testified to. Erom his experience he could not reasonably expect there would be anything but incompetency in the' future respecting financial matters as to the parents of the grandchildren on either side; and, so thought it would be futile to place property with them or under their control with a purpose that it should do permanent benefit. He also, evidently, appreciated that his son’s expectation of life was brief and that of the children on the. Rice side was likewise short. Those circumstances indicate why the greater provision for the JSice children than for the Cowie children was supplemented by the right of the latter to supersede the former in case of any thereof dying before the termination of the trust. Such rights of survivorship were evidently thought would be likely to eventually give the Cowie branch half or more of the entire estate.

Thus the reasons suggested for varying the testamentary scheme supported the will instead of furnishing any justification for disturbing it. The other testimony offered on the proposition for judicial approval of the agreed scheme, is as barren as that specifically referred to of any legitimate grounds for impeaching the will, indicating that an impeachment thereof, in the legal sense, was not seriously thought of. The gist of all was that the parties had agreed, with permission of the court, to leave the. formal execution and probate undisturbed, but substitute a new scheme having the same effect as if it were incorporated in the will as the work of the testator. So it was devoted to showing that all, including general guardians, guardians' ad litem, executors, and attorneys for them, understood the agreement and approved of it.

The ingenious scheme for judicial approval of the probate, in form, but displacement of the will in fact and substitution thereof of one arranged by treaty, the circuit court seems to have easily lent judicial approval to — not even requesting production of evidence justifying the division of $20,000, or somewhere around one fifth of the net corpus of the estate, between attorneys and guardians ad litem for their work of destruction. The judge remarked, in effect, that such matter was not one of judicial concern, since the paiUes and their attorneys, who knew all about the facts, had agreed respecting the subject.

There is no reasonable explanation of the attitude of attorneys, court, and others concerned in what was done, except it was thought the parties interested in the estate could, legally, all agreeing, notwithstanding it was largely left to minors, do anything they saw fit therewith, even the appropriation of a large part for the attorneys and guardians ad litem for their services in setting aside the testamentary scheme by treaty. Erroneous as it seems to be, in view of elementary principles governing the matter and the decisions of this court, notably Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103; Sumner v. Newton, 64 Wis. 210, 25 N. W. 30; Ruggles v. Tyson, 104 Wis. 500, 81 N. W. 367; Frame v. Plumb, 135 Wis. 24, 114 N. W. 849; Will of Dardis, 135 Wis. 457, 115 N. W. 332; Bussell v. Wright, 133 Wis. 445, 113 N. W. 644; Patton v. Patrick, 123 Wis. 218, 101 N. W. 408, — the idea that the wishes of the testator, the public policy crystallized in the law respecting the inviolability of trusts, particularly those created by will, with clear indications of intent to render the beneficiaries incapable of terminating them, stood at all in the way of the wishes of the cestuis que trustent, so long as all agreed to substitute their own will therefor, does not seem to have occurred to parties, attorneys, guardians ad litem, executors, or court having to do with the matter.

So the deed was done, — nothing very material being left, as before indicated, of the testator’s scheme but the shadow of a probate in county court, affirmed in circuit court. Such probate was solemnly adjudicated by the appellate court to be affirmed while no such thing, in practical effect, occurred. On the contrary, the thing probated was, to all intents and purposes, set aside without any evidence or suggestions to impeach it, and a scheme neither provided bj will nor by written law, — one in clear violation of a testamentary prohibition as plain as words could make it, substituted in its place.

There is no precedent for the proceedings described, so far as we know. We venture to say none exists, nor any principle justifying it. The only explanation of it is probable misconception of the scope of the rule that all the beneficiaries, of a trust may, by-agreement, the trustees consenting, terminate the trust and the limitation thereof as indicated in the decisions of this court. Nevertheless there is, in form, a solemn judgment of the circuit court substituting the wishes of the Cowie family and Eice family, under the guidance of their attorneys and judicially appointed professional representatives, they participating in the benefits, and it has not been appealed from. There it stands, in form res adjudicaba,, as to the matters referred to therein, and is relied upon as a conclusive bar to any inquiry in regard to the main difficulty complained of on this appeal, regardless of whether, as an original matter, it involves a great wrong or not.

We pause at this point to emphasize the stated displacement of the testamentary scheme, by this brief summary of the most significant differences between it and the one substituted therefor.

The plan that four grandchildren, subject to some small bequests, should take the entire net estate with its accumulations, aggregating within reasonable probabilities $200,000 or more, at the end of the specified trust period, all to be divided equally between such grandchildren, subject to some rights of survivorship, carefully designed to effect a plain and legitimate purpose, was changed into one for a division of the corpus, — depleted by about one fifth for expenses of making the substitution and a further large amount in advances to beneficiaries, — at the end of such period, the income in the meantime to be distributed as it might accrue.

Mrs. Cowie, who was not, by the will, given anything, absolutely, and only a small amount, contingently, was by the new scheme made equal with the grandchildren in the depleted corpus and income — and more, in that she was advanced on her share $5,000, and the bequest to each of the Bice children in such depleted corpus was reduced one twelfth to make up her share.

The contingent right, under the will, of Lloyd Oowie to succeed to the share of any of the Bice children not surviving the trust, was displaced by an obligation binding him to pay $100 per year for five years to each of the other Oowie children and an elimination of all contingencies as to his fourth.

The scheme for distributing all property in four shares as personalty, except a small amount, was changed for one distributing the estate, depleted as before stated, in five shares representing individual undivided interests in realty and personalty, subject to the advances aforesaid.

The corpus and income which, subject to depletion of the former $5,000 for the Hartland lodge and family monument, should have remained in trust for the four beneficiaries at the termination of the administrative period, — a probable $200,000 or more, at that time, — was reduced to $14,891.39, subject to such $5,000.

The contingent trust for Mrs. Oowie was changed to an advance of $5,000 out of the corpus of the estate and an interest in the residue sufficient to make one quarter of the whole.

The prospective interests of each of the grandchildren of over $30,000 in corpus at the commencement of the trust, in the form of personalty, was displaced by an individual undivided interest in realty and personalty, in trust, of the value of less than $20,000 as to Lloyd Oowie and $12,000 as to each of the Bice children.

The testator’s reasonable expectation of his estate being settled at an expense of around $6,000 was changed by the agreement to over $35,000.

If it were clear that the matters covered by the judgment in the will contest could, not be inquired into collaterally, as the trial court ruled repeatedly, narrowing the scope of the inquiry and the decision accordingly, much less attention would have been devoted to the full history of what occurred. If the judgment were only erroneous, and therefore conclusive till set aside in some direct proceeding to that end, yet from an original standpoint all wrong and indefensible, it would seem, we must confess at first impression, perhaps the less said about it the better. Such an apparent travesty upon the administration of justice, irremediable, spread in detail upon the record, would tend to reflect discredit, not only upon the participants therein but upon the judicial system which would render it possible in the first instance, moreover, render the wrong remediless for mere want of a person to seasonably challenge the status established by the judgment. Is the judgment beyond collateral attack? Did the court rule right in respect to holding that it could not look beyond the formal closing of.the will contest? That is by far the most important matter presented now. In briefs on the oral argument, counsel for those interested in justifying the trial court’s rulings iterated and reiterated that the matters covered by the judgment were a closed book, — referring to the familiar rule that such a pronouncement, within the scope of the court’s powez’, is, till challenged otherwise than collaterally, — deemed to speak words of truth. Eepeatedly, on such argument, an effort was made to turn counsel’s attention to the allowance in circuit court of $20,000 to attorneys ,and guardians ad litem. They met it, again and again, by invoking the rule of res adjudícala as a shield, — not saying one word in justification of it; but, persistently endeavoring to obtain the benefit of that salutary doctrine embodied in the maxim “Judicia sunt tanquam juris dicta et pro veritate accipiuntur

The judgments of the law speak words of truth, infallible, in theory, ex necessitate, and doubtless, as nearly in fact, as human wisdom could well approach that ideal; yet, so far, in possibility, from it, that were it not for the remedies provided for destroying the vitality of nnjnst judgments in certain cases, or avoiding jurisdictional error founded in judicial usurpation, “the black menaces” which sometimes hover around and cloud such ideal are such that it would seem possible to obscure it altogether; but, with all, in the words of' the literary philosopher, quite well illustrated in this case, judicial instrumentalities are so resourceful, that, it is, in reality, as secure “as a star in the maw of the clouds.” True-to- that, notwithstanding the repetition of effort to cover the wreck wrought in the will contest with the shield of' res adjudicaba> the question as to the division of $20,000 of' Dr. Rice’s estate between the actors in that transaction would not and will not down. The specter, so to speak, of the murdered will, like Banquo’s ghost would not and will not vanish, except temporarily. It appeared here and there though brushed aside now and again. It took a place at the table on-the argument, stimulating the only one who had no part in the destruction and no reason for excusing it and whose hands were clean of the stain of it — all to his credit, — to declare-in the face of the menace of the overshadowing apparition, “Thou canst not say I did it.” It would not down permanently because the rule invoked, and seemingly the only thought of effective defense, had no application to the case.

If the court exceeded its jurisdiction of the subject matter, then the judgment is no protection whatever. It may be ignored altogether. Peck v. School Dist. 21 Wis. 516; Blodgett v. Hitt, 29 Wis. 169; Damp v. Dane, 29 Wis. 419; Mathie v. McIntosh, 40 Wis. 120; O’Malley v. Fricke, 104 Wis. 280, 80 N. W. 436; Harrigan v. Gilchrist, 121 Wis. 127, 228, 99 N. W. 909; Hughes v. Cuming, 165 N. Y. 91, 58 N. E. 794; Cooper v. Reynolds, 77 U. S. 308. The rule is elementary,, that if the matter dealt with by the judgment in this case was entirely outside of the court’s jurisdiction, then, as said in the last case cited, the result was not merely erroneous and so,. binding on all parties which the court had jurisdiction of, and their privies, till set aside in some of the ways appointed by law, not including collateral attach, but was a usurpation and, as said in Damp v. Dane, supra, the proceedings void in the broadest sense of the term. To satisfy the foregoing, manifestly, the jurisdictional defect would have to go to the fullest extent to preclude the parties to the litigation from attacking the judgment collaterally, since, for the time being, all consented to what was done, so far as they had capacity to consent. It follows that, if what was done was not within the scope of a will contest, yet the parties saw fit to mutually bring it into the litigation and the court had jurisdiction of such subjects, the result cannot be considered entirely outside of its authority and so void.

Jurisdiction of the subject .matter- is not, necessarily, measured by the scope of the controversy as presented by pleadings. Generally speaking, as said in Cooper v. Reynolds, supra, “By jurisdiction over the subject matter is meant the nature of the cause of action and of the relief sought; and this . ¡ . is to be sought for in the general nature of” the court’s “powers, or in authority specially conferred.” The cause of action within the scope of the court’s authority may be as broad as the parties see fit to make it by agreement, subject to refusal to entertain it in an irregular way. So the limitation is to be determined in any particular instance by whether the court has jurisdiction of such subjects, as said in Harrigan v. Gilchrist, 121 Wis. 127, 229, 99 N. W. 909, or, as said in Hughes v. Cuming, supra, whether it had “power.to act upon the general,'and, so to speak, the abstract question and to determine and adjudge whether the particular’ facts presented called for the exercise of the abstract power.”

The foregoing leads up to the inquiry of whether the circuit court for Waukesha county had judicial power over such subjects as changing the testamentary disposition of property from the plan made by the testator to one agreed npon by all the beneficiaries, especially where they were, in part, minors. Did it have jurisdiction in the broad sense of power over such matters, as indicated in Harrigan v. Gilchrist, supra, Vaughn v. Walsh, 122 Wis. 486, 100 N. W. 840, and the like ? Was the abstract question itself, — that of whether the will of a testator or that of the beneficiaries thereunder shall be the rule for the administration and disposition of the former’s estate, within the scope of the power of a circuit court to decide ? It must be conceded that such questions are entirely foreign to the scope of a will contest. If a circuit court has no authority to entertain an equitable action to deal with such a matter, then it has none to permit the parties to turn such contest action into the form, in effect, assumed here when the cause was closed by judgment. It was then no longer a will contest matter in any proper sense; but, an equitable action in which all beneficiaries under Dr. Rice’s will were parties, to set it aside and make a new one to suit their own notions and necessities, — not because it was invalid but because they preferred a different way of parceling out his property.

The numerous counsel interested in supporting the circuit court’s assumption of authority have failed to cite us to any principle or authority justifying it. Maybe necessity therefor was not appreciated. In general, it seems to have been assumed that there was no absolute want of power involved,— •only a question of judicial discretion and perhaps not even that, — but that the sole question was whether an agreement between all parties interested was binding on the court; and, so, evidence was confined, as indicated in the statement or as we shall see, to discover whether the writing submitted embodied the real wishes of the parties.

An illustration of the distinction between jurisdiction of the subject matter in the technical sense, rendering a judicial determination, however erroneous, binding till impeached in some of the ways provided by law, and a mere assertion or pretense of jurisdiction without any real foundation for it whatever, rendering the judicial determination in respect thereto utterly void, is found in Melia v. Simmons, 45 Wis. 334; Frame v. Thormann, 102 Wis. 63, 79 N. W. 39; Wis. T. Co. v. Wis. M. & F. Ins. Co. Bank, 105 Wis. 464, 81 N. W. 642; Harrigan v. Gilchrist, supra; Jordan v. C. & N. W. R. Co. 125 Wis. 581, 104 N. W. 803; Griffith v. Frazier, 8 Cranch, 9, 23; Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108; Cunnius v. Reading School Dist. 198 U. S. 458, 25 Sup. Ct. 721.

The county court, as indicated in the cited cases, having jurisdiction only of the estates of deceased persons in respect to administering the same, the power does not become active, in any particular instance, till the person over whose estate the authority may be asserted is actually dead. A mere allegation and adjudication in proceedings to that end does not suffice. If, notwithstanding that, it turns out that the person adjudged to be dead is in fact alive, all proceedings in respect to his estate are utterly void. The fact of death, irrespective of any adjudication respecting it, is essential as said, in effect, by MaRSHjvll, O. J., in Griffith v. Frazier, supra, to give judicial competency to deliberate in respect to the matter at all, though if that essential fact exists and the court, in due course, appoints one as administrator not entitled thereto by law, the act is binding until annulled by competent authority. The matter of such appointment is subsidiary to the basic fact going to the power of considering, at all, the matter of'granting letters of administration. Thus, if the subject of administering one’s estate be deliberated upon without the precedent condition of death existing, it is not, under any circumstances, a matter of judicial cognizance, the court has no jurisdiction of such subject, or, in other words, of the subject matter, within the rule, while if the basic condition exists a mistake as to the proper person to take administration or even a wrong determination as to the existence of any other subsidiary matter such as the existence of property within the state, as in Jordan v. C. & N. W. R. Co., or the place of domicile, as in Frame v. Thormann, is in the field of mere judicial error. Applying that to the case in hand, the next inquiry must be as to whether the circuit court had any right, whatever, to deliberate respecting the proper scheme for a distribution of Dr. Rice’s property, even to the extent of approving and giving force to the agreement of all parties entitled, in any event, to share in the estate.

Further discussion of the vital question above suggested might take a wide range; but, after all, it is so plainly governed by principle and the logic of the decisions of this court that it may well be greatly narrowed from its possible scope. The writer would rather court the opportunity for an extended discussion thereof than seek to avoid it, but perhaps the more brief treatment will make the better precedent while it will be ample for the result reached.

The right to make a will is more sacred than the right to make a contract. The latter, as evidenced by the writing, may be judicially reformed or set aside upon equitable ground. The former cannot. Machem v. Machem, 28 Ala. 374. The court and parties must take it as they find it and,— if valid, abide by the intent embodied in it so far as that can be discovered. There is mo judicial power even to correct a will which extends beyond the field of construction and interpretation. 1 Pom. Eq. Jur. (3d ed.) § 371, note.

Said the eminent Chief Justice Gibson, in Bash v. Bash, 9 Pa. St. 260, “Every sane man must be allowed to make his own contract as well as his own will.” A court might as well usurp the functions of making wills for the dead as contracts for the living. In Greenwell v. Greenwell, 5 Ves. Jr. 194, under most distressing circumstances, a court of equity allowed a slight departure from the terms of the trust, practically, on the theory that, in the changed situation, it was really carrying out the presumed wish of the testator, and, only then, npon consent of all parties interested, all being treated alike. The Lord Chancellor remarked: “I fear, if I shonld make a decree, it Would- be my will, and not the testator’s;” bnt, his scruples were overcome npon the consideration suggested. In harmony therewith, this court, speaking by Ryan, O. J., in Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103, said:

“Breaking a will is very much like making oneimposing upon the testator a rule for distribution'of his estate “against his solemn wish in dying.” '“Every one should have the same power to dispose, by will, after his death, in accordance with his own wishes, of whatever he may leave behind him in his own sole right, as he had in life to dispose of it by contract or gift. And it is as much the duty of courts to uphold and enforce his will after death, as to uphold and enforce his ■contracts made during life.”

The right to make a will is very ancient and.considered as incidental to the right .to acquire property and so one of the inherent rights guaranteed by the constitution. Its recognition antedates common and civil law. It is as ancient as any sort of civilization. It has been held sacred in all nations and under all conditions. Schpuler, Wills (3d ed.) §§ 12-17; 30 Am. & Eng. Ency. of Law (2d ed.) 549.

At the time of the adoption'of our fundamental law no right was more firmly entrenched in the policy of this country or significantly a part of the common law, than that to make a will. Therefore it was guaranteed by sec. 1, art. I, of the ■constitution and was also made fundamental by sec. 13, art. XIV.

This court said in Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, the common-law conception of the right of persons to control the disposition of their property after death, subject to legislative regulation,, is'one of those rights referred to in the words of the constitution:

“All men are born equally free and independent, and have -certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” Art. I, sec. 1.

Nowhere, at any time, has that right been given greater dignity than in Nunnemacher v. State. Its history was there traced as a birthright from the first born and was established as of undoubted constitutional recognition and beyond any earthly power, except that of the people in an original effort to form a government, to take it away.

In Will of Dardis, 135 Wis. 457, 115 N. W. 332, the same logic ruled. In conformity thereto it was pointed out that there was a settled legislative policy in this state requiring the establishment of every valid will, even in case of all the parties interested consenting otherwise. The force to be given to that policy was indicated by reference to see. 4505, Stats. (1898), making it a crime to conceal or suppress a will, regardless of the attitude of the beneficiaries thereunder. Also secs. 3784, 3785, 3786, and 2296, Stats. (1898), were referred to,- — all indicating the high character in which testamentary dispositions of property are to be regarded. Therefrom the conclusion was reached, that regardless of holdings elsewhere, in this state, a will, once validly made and subsisting to the death of the testator, must be taken and judicially enforced according to his intent, if that can be ascertained; that parties cannot be permitted, even though all interested join, by any agreement between themselves or any subterfuge to displace the dying wish of the testator; that in respect thereto the public at large are, under the policy of our law, so far concerned in the establishment of such a will that the proceedings to that end are in the nature of an action m rero, the whole body of the people being parties. The real judicial question involved is one of status. In that instance the parties stipulated to facts which, if they existed, would have avoided the will, and agreed upon a method of disposing of the estate in place thereof and the proponent joined in the scheme. The court, nevértheless, allowed the will. On appeal the decision below was affirmed _ notwithstanding insistence of all parties that the stipulation was binding on the court to render judgment displacing the testamentary scheme. This court affirmed the judgment, remarking in connection with the declaration that the public is a party to a will contest to such extent that the parties thereto cannot set it aside by stipulation:

“There is also recognized by the courts an interest and right of the testator to have the directions of his will carried into effect, at least upon some subjects. His right is recognized to direct at least the method of management and disposal of his property after his decease, which courts cannot be compelled to disregard to accommodate the wishes of some or even all parties having pecuniary interest in the property.”

The whole reasoning is in harmony with the previous holdings of the court that the right to make a will and have it allowed and carried out is a constitutional right, affirmed by statute law, and which courts and^ parties are powerless to take away; that it subsists after the death of the testator, he being recognized as having, in effect, given the court irrevocable power of attorney to carry out his wishes, but not to violate them. The sole jurisdiction of the court is to take note of the testator’s intent, so far as it can be discovered by judicial rules and does not violate the law, and give effect to it.

Oases were cited from other jurisdictions' in the Dardis Case upholding the right of parties to suppress a will by agreement and substitute some new method of distribution; but, in addition to disapproving of them as plainly unsound, they were held to be utterly out of harmony with the public policy here as found in the written law and out of harmony with the general trend of authorities elsewhere.

A person having exercised his right to make a will, and done so in accordance with statutory regulations, has produced a thing and imposed upon the prospective proponent, the public, and the court specific duties with reference thereto. The mere beneficiaries are not, in the broad sense, the only parties to it; neither are they and those who would take in the absence of a will the only parties concerned, save creditors. Performance of the duty imposed upon the proper person designated by law to propose the will for probate may be compelled and nonperformance thereof punished. The court, having once gained possession of the res for the purpose of determining its admissibility to probate, is, to all intents and purposes, possessed thereof as the subject of an action in rem. The thing is provable according to its purport only by the witnesses of the law, and disprovable by establishing, as matter of fact, incapacity to make a will, fraud, undue influence, or something of that sort going to show that it is not in reality what it purports to be. Is the thing the will of the testator ? That is the sole question. The facts are not provable by stipulation. The proponents have no right to withdraw the thing from the court’s possession and jurisdiction. If all the parties appearing themselves withdraw, the thing itself, the will, must still remain in possession of the court. They are powerless to deal with it otherwise than by proving, in the proper manner, that it is or is not what it purports to be. Syme v. Broughton, 85 N. C. 367. There can be no judgment of nonsuit, for there is no one competent to submit thereto and no jurisdiction in that regard. The jurisdiction of the court once, being challenged upon the subject, — challenged on behalf of the public in general as well as those specially interested, — the judicial doors being opened in response to the instrumentality appointed by law for that purpose, — the question raised must be decided on the evidence or presumptions of law and • fact in respect to the matter. Young’s Will, 123 N. C. 358, 31 S. E. 626. To decide that, is the court’s sole function. Coalter’s Ex’r v. Bryan, 1 Gratt. (Va.) 18. A contract between those interested not to offer a will to probate but to divide the property by agreement, is void -where there are minors; and, even as to adults, such an agreement is inter partes and does not affect the question of whether the will shall he probated as written, or not, or affect the matter as between themselves except in so far as permissible under the doctrine of estoppel. Finch v. Finch, 14 Ga. 362.

■We might pursue the subject discussed at much greater length hut enough has been said to indicate, pretty clearly, the boundaries of the court’s jurisdiction in a proceeding for the admission of a will to probate. A moment’s thought in respect to the situation, under the law, of property left by a deceased person, will demonstrate the utter impropriety of such a proceeding as a dispersion thereof by agreement. Immediately upon death occurring, in case of intestacy, the personal property devolves upon the court, substantially, as personal representative till one shall have been appointed, and then upon the appointee in trust for a distribution according to law. The title to the real estate immediately vests in the heirs of the deceased subject only to be divested by some proper conveyance or in the administration proceedings. In case of a will, the personalty goes first as in case of intestacy; but, as to the realty, immediately upon the allowance of the will it vests in the person, or persons, intended thereby, subject only to be divested in some manner therein pointed out or some other manner provided by law in the course of executing the will, or by a proper conveyance by the person holding the title. Thus the law disposes of the whole subject. It is not given to the court or parties to make a law to govern the matter, — to devise and execute a scheme divesting some of title upon whom the law has cast it, and vesting it in others, by proving of a will in form but substituting something else in substance. The title to Ur. Eice’s real estate vested under the will, or under the law, and could not go otherwise except by force of estoppel which could not apply to minors in any event, unless it was proper for the court to make the law for the case and do something entirely outside of the scope of a prohate contest, or any other of judicial cognizance of which there is any precedent, or for which there are any established supporting principles. It is considered that the whole subject was outside the judicial authority and the judgment violating the terms of the will was coram non judice.

So we must conclude, not only that there is a constitutional right to make a will but that such right includes a right of equal dignity to have it carried out. There seems to be no escape from the conclusion.

Now where did the circuit court find jurisdiction to do. what was done in this case in view of the foregoing? Its jurisdiction was confined to applying the law within the constitutional grant of power, not making it or breaking it. It derived its authority as to the subject, if it had any, from sec. 8, art. VII, of the constitution, for there is no statute' affording any such power. The extent of its power did not go beyond “all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited bylaw; and appellate jurisdiction from all inferior courts, and tribunals.” The term “matters civil” refers to controversies in law and equity to redress and prevent wrongs and to enforce and preserve and conserve rights, — not to destroy them, — a jurisdiction after the manner of the common law as recognized when the constitution was adopted, which was never understood to extend to the making or breaking of' wills of deceased persons, as indicated by this court in Dodge v. Williams, 46 Wis. 70, 1 N. W. 92, 50 N. W. 1103, and other decisions referred to. Mr. Justice Mili.ee, in Cooper v. Reynolds, 77 U. S. 308, said: Jurisdiction of the subject matter “is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred,” meaning conferred by law, not by mere consent of the parties.

It may lie that all regarded the will contest in the nature of a proceeding to establish a trust and were misled by expressions in the books to the effect tfcjat parties can, and the 'court may, permit termination of-a trust where all parties interested consent thereto, and so thought that the power extended to permitting, in general, ■ what -was done in this case and was competent to permit it in will contest proceedings, or at least that it was nonprejudicial, even if irregular, to do it in such proceedings instead of in an independent equitable action. There are many loose expressions in elementary works, and legal opinions as well, that might, taken by themselves, lead to such idea.

This from Smith v. Harrington, 86 Mass. 566, 568, is a striking illustration of that:

“The plaintiffs are the heirs, and the' only heirs at law of the testator, and are therefore the only parties interested in the enjoyment, or in the final distribution, of that part of his estate which still remains in possession of the executors. And as all of the plaintiffs desire that it shall now be distributed, and as the executors make no objection thereto, if they can lawfully pay over the funds in their hands, and express their willingness that the trust should be at once terminated in this manner, and their belief that this will be for the best interest of all parties concerned, there is no good reason why it should not be immediately done. There is no legal or equitable objection to the granting of the relief prayed for in the bill. Eor considered collectively the plaintiffs are the real and substantial owners of the property, and it is reasonable and just that it should be disposed of in conformity to the desire and preference in which they all unite.”

A study of the case, however, indicates that all the parties were sui juris and that the broad doctrine stated was pretty clearly fenced about. Other authorities indicate, clearly, that it does not apply where any of the parties are under disability to act for themselves. Ruggles v. Tyson, 104 Wis. 500, 81 N. W. 367; Matthews v. Thompson, 186 Mass. 14, 71 N. E. ; Eakle v. Ingram, 142 Cal. 15, 75 Pac. 566; Culbertson's Appeal, 76 Pa. St. 145; Beach, Trusts, § 705; 39 Cyc. 99.

But the rule stated is not one of universal application. It has been no more definitely limited than by the decisions of this court. Sumner v. Newton, 64 Wis. 210, 25 N. W. 30; Holmes v. Walter, 118 Wis. 409, 95 N. W. 380; Patton v. Patrick, 123 Wis. 218, 101 N. W. 408; Bussell v. Wright, 133 Wis. 445, 113 N. W. 644.

In the first case cited the court expressed grave doubts as to whether a trust created, as in this case, can be terminated at all with or without the consent of the court. It was said that it should not be, in any event, without the greatest care not to defeat the cherished purpose of the testator where it is clearly indicated that such purpose was that it should subsist for a particular period to accomplish a particular object, as here; and that such subsistence should be regarded just as sacred as the establishment of it where any other course would violate the clear intention of the testator. It was there urged, on authority, that no court had power to destroy such a trust even by consent of all parties interested — Douglas v. Cruger, 80 N. Y. 15, and other cases, being referred to, also sec. 4030, Stats. (1898), prohibiting the court, in supervising the administration of a testamentary trust, from making any order in violation of the terms of the trust and other sections, evincing the legislative policy. The court adopted that view, so far as necessary for the ease, remarking:

“It is clearly manifest from the will of Mrs. Goodal that she intended to pledge all the residue of her estate, after the other trusts created therein were executed, to the support and maintenance of Cyprian and Mary G-. Chandler during their respective lives, and to place each of them beyond the reach of want while he or she survived, and while any portion of her estate should remain unexpended. ... In the vicissitudes of human affairs she may come to want. Should such a misfortune overtake her, the intention of the testatrix was to provide a fund to which she might again resort for her maintenance. ... It would be a most pernicious and dangerous rule to allow testamentary trusts for the support of dependent persons to be absolutely terminated upon the mere consent of the beneficiaries, without regard to their capacity or the circumstances under which such consent was obtained, and without any guaranty against future adverse conditions.”

In Patton v. Patrick, supra, the court, speaking on the same subject, said:

“The rights of an owner of property to control its use and management during his life and after his death, within certain limitations imposed by law, are among the most sacred, and entitled to the most careful protection at the hands of courts, without scrutiny as to the quality of his reasons in making such choice. Among these rights is that of preserving specific real estate as such within a limited time after his death. He may think that thereby is assured either a more certain or larger income than could be obtained by its sale and the investment of the proceeds, or he may believe that the increase in sale value during that term will be for the best interest of those for whom he desires to provide.”

In Holmes v. Walter, supra, the power to terminate a testamentary trust was expressly limited to cases where all parties, interested are in esse, are sui juris, all consent, and “the will contains no prohibition, expressed or implied, against terminating the trust.”

In Bussell v. Wright, supra, the court met the question more decisively, perhaps, than theretofore, hólding that, a testamentary trust having been fully executed and there being an expressed or implied prohibition against terminating it till so executed, the court had no authority to disregard it. There, as here, all parties concerned joined in an effort to terminate the trust with the result'indicated.

The conclusion is reached that, looking at the matter from any viewpoint, the trial court had no jurisdiction of the subject matter of displacing Mr. Rice’s will. The agreement to. that end should have been ignored as in the Bardis Will Case. Tbe decree, in form, except tbe affirmance of tbe probate in county court, must be regarded as a nullity. All expenditures in tbe contest wbicb followed incidental to tbe void agreement were an unjustifiable waste of trust funds. Tbe attorneys, guardians ad litem, and others wbo participated in tbe depletion, however innocently they may have acted, received tbe money without -right and must be held to account therefor. Tbe subsequent proceedings in county court should have proceeded in accordance with tbe will and tbe departure therefrom must be remedied, if practicable, though probably tbe barm done can never be fully repaired. So far as it can be, it must be, notwithstanding it will, doubtless, cause great hardship to several parties wbo innocently acted on tbe advice of attorneys, courts, and court assistants. That cannot be helped. Such a result is possible, though not common in the redressing of wrongs, — though very regrettable, of course, where the transgression involves no bad intent and occurs, largely or wholly, from a purpose, as supposed, to promote a worthy end in a moral sense, yet is so necessary to set things right before the law in the given instance and as an admonition for the future that the court, while trying to temper justice with a high degree of mercy, must be quite blinded to the results and consequences of its decrees. So the claim that the trial court erred in excluding the evidence as to the contest proceedings and in refusing to go behind the judgment, so called, rendered therein, must be sustained.

On the appeal by defendants composing the firm of Nath. Pereles & Sons, the point is made that the court erred in denying their motion for a change of venue. They were proper and necessary parties. In such situation a change of venue is not grantable except upon the application of all upon the same side. All being necessary parties to the main controversy to which the issues as to separate defendants, including Nath. Pereles & Sons, were incidental, making several judgments probable though parts of one general decree covering the chief controversy, the action'could not be split up and part tried in one place and part in another. It was an inseparable controversy with a major issue and several minor ones germane thereto. In such cases, an application for a change of venue by one of several on the. same side, or similarly interested, is not within the statute. That is ruled by Wolcott v. Wolcott, 32 Wis. 63; Rupp v. Swineford, 40 Wis. 28; Eldred v. Becker, 60 Wis. 43, 18 N. W. 642; State ex rel. Rowell v. Dick, 125 Wis. 51, 103 N. W. 229. All parties who have appeared, and are not merely nominal; but, are, really, interested in the controversy'on one side though not necessarily on the same side of the record, constitute one party within the meaning of see. 2625, Stats. (Supp. 1906: Laws of 1905, ch. 282), and must act in harmony, though the affidavit may be made in their behalf by any one on behalf of the others, the motion being in behalf of all.

Complaint is made on behalf of appellants representing the late firm of Eyan, Merton & Newbury because they were brought in as defendants. That is on the mistaken notion that the agreement displacing Mr. Eice’s will was legitimate, all proceedings thereon valid, and the only matters concerning such defendants which happened in county court subsequent to the circuit court judgment, were legitimate matters of agreement with the parties they represented, who were competent to contract and did so, and that nothing was involved in the controversy on the appeal impeaching such contract.

As we have seen, Eyan, Merton & Newbury wrongfully ■obtained, in the circuit court proceedings or pursuant thereto, a large amount of the trust fund. That was a matter which came before the county court and was involved in the order ■settling the final account. The question was also involved of whether the county court properly recognized them, in any event, as having any claim for services in such court, chargeable to the estate, even if the beneficiaries they represented, or all of them, had competency to contract with reference to the matter, — especially whether they had any claim under the contract with the beneficiaries as to the county court proceedings. So it is plain the entire subject covered by the appeal from the final order required their presence in the circuit, court action in order to settle the entire controversy.

Error is assigned, generally, by appellants on the side of' those seeking to sustain the final settlement in county court, because the circuit court overruled objections to the appeal from county court being entertained as to the attorneys’ fees because it was taken after the time therefor had expired. That is predicated upon the fact, as claimed, that such court, took up the matter of such fees December 24, 1908, made a verbal order regarding the same and minuted it on the court record, though the formal order allowing disbursement of fees so allowed as executors’ expenses of administration was not made except as part of the general judgment of January 9, 1906, settling the final account and assigning the residue of the estate; and so, the time for appealing as to attorneys’ fees commenced to run from the earlier date and had expired before taken. The idea is that as to such fees, the proceedings at such date were personal to the attorneys and the result a. final order, in every respect, as to them and, in legal effect, as to the executors, even though regarded as advisory as to them, since they acted on the faith thereof in promptly paying the-amounts allowed to the several parties and on the assurance that there would be no appeal; moreover, that no objection was made to the order itself prior to the payment; but, complaint was confined to the payments being made out of the income instead of out of the corpus.

It seems, from the record, that the facts are about as suggested, — that the chief complaint, at first, was that the income was, largely, temporarily depleted to pay the $10,040. The indications are that the matter of attorneys’ fees was, in the main, a subject of agreement on the theory that the attorneys and guardians ad litem represented equal interests,. four in- number — Kyan, • Merton & Newbury for the adult beneficiaries and general guardians with whom they had a contract to the effect that they should be allowed out of the corpus of the estate an amount equal to that allowed to the attorneys for the executors respectively, Henry Lockney, guardian ad litem, for the minors, Connell & Weidner, attorneys for executrix LÁbbie Alter dice, and Nath. Pereles & Sons for executor Btrohmeyer.

The executors seem to have treated the matter as one of conti’act between the attorneys themselves, the beneficiaries, and guardians ad litem, subject to judicial approval, and so paid very little, if any, attention to the matter, — supposing that whatever the parties and attorneys agreed to, and the court approved, was good enough for them.

Thus the fixing of attorneys’ fees in county court was treated as really part of the general scheme formulated in circuit court to work out the whole matter by treaty as regards division of the estate between the beneficiaries — the attorneys and guardians ad litem taking orders from the county court, from time to time, in approval of matters agreed upon and settling such matters as might require such interference for want of harmony. In that there was such dereliction of duty on the part of the executors and the guardians ad litem and such approach, at least, to jurisdictional error on the part of the county court in following the void agreement for the disposition of the estate, that the proceedings of December 24, 1908, took very much the cast of that in circuit court. It was really based thereon. If the' latter had not occurred the former would not. The beneficiaries had no right to make the county court contract, in any event, especially the general guardians had no authority to join therein nor the guardians ad litem to submit thereto. Such contract, doubtless, had something to do with fixing the fees as to the other three interests. The fact that it was made and. the entire proceeding had An the theory that the circuit court contract was the charter to go by, — a clear mistake of law rather than one of fact under which no real rights were obtained, or obtainable, — is a complete answer to the contention that the time for inquiring into the legitimacy of the order of December 24, 1908, expired in sixty days thereafter on grounds of estoppel. Had the fees of the attorneys been adjusted in due proceedings in the administration of the estate under the will, instead of in direct violation of it, and paid under legitimate circumstances otherwise, a different question would be presented. The case then would have some semblance to Carpenter v. United States F. & G. Co. 123 Wis. 209, 215, 101 N. W. 404; Vaughn v. Walsh, 122 Wis. 486, 100 N. W. 840; Schinz v. Schinz, 90 Wis. 236, 247, 248, 63 N. W. 162; and other cases cited to our attention.

True, it is the law that if an executor or administrator presents a matter to the supervising court for an advisory order, or presents a matter for adjudication proper to be so presented, and parties interested have due notice and opportunity to be heard, time for appealing commences to run from the time the result is announced, whether embodied in a formal order or merely minuted on the court record; and, unless challenged seasonably for correction in the same court nr on appeal, it is conclusive. Such is the doctrine of Schinz v. Schinz, supra, and we affirm it. As a rule, all ordinary judicial advisory directions, within the range of reason, in the business matters of administering a trust, made upon a presentation of the facts with due care, though without notice to the parties interested, and acted upon in good faith, protect all parties concerned, as more fully shown hereafter under another head. Harrigan v. Gilchrist, 121 Wis. 127, 384, 385, 99 N. W. 909. The difficulty here is that the direction does not fall within either of the fields suggested. It was made on a request for settlement of a vital feature of the executor’s account, but based on a wholly illegitimate situation to which all herein concerned were parties.

As we bave before seen, tbe Eyan, .Merton & Newbnry contract in county court was of sucb character and gave such cast to all proceedings of December 24, 1908, theretofore and thereafter, relating to attorneys and guardian ad litem fees in county court, that there, really, was no jurisdictional foundation to start the time for appealing till the entry of the order of distribution January 9th thereafter. We cannot consider the occurrence of December 24th as an ordinary one on application for a final judicial word, judicially spoken, regarding disbursements for expenses of the nature involved. Had it been, doubtless time for appealing would immediately have commenced to run. The whole proceeding was so extraordinary that it is difficult to locate the particular matter within any principle. If there is any such definitely applicable thereto, the books, we venture to say, are barren of any illustration of it.

Counsel for the Eyan, Merton & Newbury interest appreciated the difficulty suggested and contended, as we shall hereafter see, that the whole proceeding as to the contract was extra-judicial, — a mere arbitration, if anything. We do not wholly adopt that view, as before indicated. The contract matter was brought into the general consideration as to counsel fees for the estate, resulting as it seems in the suggestion of $10,000, one half to be specially impressed with the character of compensation for the attorneys for the executors, one quarter with that of compensation for the guardian ad litem— really an assistant of the attorneys for the executors, and one fourth with that of compensation for the ^attorneys for the beneficiaries, in practical effect second assistants to the attorneys for the executors.

On the whole, we incline to the idea, as before indicated, that there was no real judicial disposition of the matter of allowing fees till the subject was covered by the final order, and that whatever was said theretofore was either tentative or nonjudicial. Such parceling out of part of the estate to attorneys for tbe beneficiaries and guardians ad litem in connection with’ tbe previous bistory bas quite tbe cast of being wholly coram non judice. Tbe payments on account of tbe $10,000 were doubtless made on tbe faitb of tbe probable allowance in tbe final account ratber tban of anything which occurred December 24th, or prior thereto.

Coming to tbe finality of tbe allowance of tbe $10,000 in tbe order of distribution, tbe matter was within tbe subject matter of tbe court’s discretion. If that order was a protection to tbe executors in paying any part of tbe $10,000 in face of a possible appeal, it was a protection as to all of it, and it was such protection as we shall see, if the executors made tbe payments in good faitb. With tbe order of tbe court within its jurisdiction, tbe advice of counsel at all points besides, and tbe apparent consent, for tbe time being, of all, we can hardly see any warrant for bolding there was bad faitb in this matter. . True, there are many circumstances which well might have put tbe executors on most diligent inquiry respecting tbe general scheme of dispersion of tbe estate in violation of tbe will, tbe attorneys and guardians ad litem participating, and in a way to suggest, somewhat, want of attention to their duties to tbe trust they were responsible for conserving, and made them hesitate and perhaps refuse to make tbe payments, or at least to finally comply with tbe details of tbe order of distribution, till expiration of tbe time for appealing, yet we are not inclined to bold, under all tbe circumstances, that there was any negligence in tbe matter amounting to bad faitb.

Tbe point is made on behalf of appellants Merton and New-bury that tbe court erred in changing tbe compensation fixed for tbe firm of Ryan, Merton & Newbury because it was really a matter of contract with tbe beneficiaries; that tbe county judge merely acted as an arbiter in tbe matter with authority to award such firm, on account of tbe respective interests of tbe heirs in tbe corpus of tbe estate and chargeable thereto accordingly, a like sum to that awarded tbe attorneys for the executors respectively; that his act was not judicial and therefore was entitled to prevail though the amounts awarded the attorneys for the executors were reduced on appeal. It -seems counsel contend for a construction of the writing according to the letter which clearly violates its spirit. It did not leave the matter in question to the county judge but to the court. The purpose was to have the members of the firm recognized as having been, all through, attorneys for the legatee active interveners in the administration proceedings, — not merely as independent overseers of the other attorneys, but as instrumentalities to do their work in fact or join with them therein, at the expense of the estate with the understanding that all should, practically, have the same status as if attorneys for the executors. The general trend of matters from the time of the circuit court contract to that in question is in harmony therewith. Ryan, Merton & New-bury, as indicated in the statement of facts, in all things they were concerned in, performed work within the scope of that of attorneys for the executors. They were treated as if entitled to do so. After the work was nearly all done the written contract was made in harmony with the general conduct of matters. That led the county court to suppose such contract should be treated as of judicial cognizance and the circuit court to suppose that the status created by the arrangement at the start was intended to continue to the end, in harmony with the writing. However, since the parties contracted on an entirely false notion of the interest of the beneficiaries and the latter were seemingly dominated largely by persons who had very little personal concern in the matter, the whole being referable to the illegal circuit court agreement, it furnished no basis for fixing any fees in favor of Ryan, Merton & Newbury. Independently of the agreement, the beneficiaries, except as to the minors by their guardians ad litem, had no right to be represented by attorneys in the settlement of tbe estate at tbe expense thereof. It was tbe duty of tbe attorneys for tbe executors to perform, in general, all legal services chargeable to tbe estate, and that of tbe guardians ad litem to see that they did not do tbe work for them and at tbe end combine to have several sets of attorneys’ fees instead of one allowed, as there were here, practically all referable to tbe legitimate work of tbe executors or their legal advisers.

If tbe conclusion were otherwise as to tbe Ryan, Merton & Newbury agreement, it is difficult to see why tbe point made by appellants who challenged tbe county court’s order that, such agreement was unenforceable because contrary, to public policy and should not have been recognized by either county or circuit court, is not sound. As attorneys for tbe general guardian and tbe adults, it was their duty to insist upon tbe attorneys for tbe executors and tbe guardians ad litem performing their duty. That was really their whole scope of legitimate employment. If tbe estate bad been administered in tbe proper way under tbe will, full performance of' such duty would have left very little for them to do as compared with that devolving upon attorneys for tbe executors. So in contracting in writing tbe parties must have bad in contemplation, as has been indicated, that tbe work bad been substantially joint, in plain violation of law. That seems to be too clear to have escaped tbe attention of the county judge. It doubtless did attract bis attention, but be supposed tbe illegal agreement in the circuit court was binding and justified tbe continuance of tbe scheme embodied in it to tbe end. Looking at tbe matter in tbe proper light, respecting a legitimate handling thereof, it was tbe duty of Ryan, Merton & Newbury not only to see that tbe attorneys for tbe executors-performed their duty but to resist allowance of any compensation to them in excess of what was reasonable for what they actually did which was reasonably necessary to be done. Tet they put themselves by tbe written contract into a position where they were interested in having as large an amount as possible allowed such attorneys. The -greater tlie expense in that direction the greater the enrichment of themselves. The general result, naturally, was the allowance- of a sum in all, divided into the four parts, each 'about equal to the fair value of the reasonably necessary services in the whole, considering that one competent attorney, or firm of attorneys, was ample therefor. We cannot approve of the written county court, contract. It should have been held void on grounds of public policy and the compensation granted the attorneys for the-executors held to cover all expense of that nature chargeable to the estate.

The further point is made on the part of the Byan, Merton & Newbury branch of the case that the circuit court erred in holding that the $5,000 allowed to them by the circuit court agreement covered their services rendered in county court prior to the appeal in the will contest matters. That may be, but if so, the whole subject has been eliminated by condemnation of both the circuit court and.county court contracts, as illegal.

The claim is made on behalf of the executors that they acted in good faith in disbursing the trust fund, — doing it always on judicial directions, — and so are entitled to protection! against any personal liability, especially on complaint of the-parties who consented to the disbursements. The rule in-vohed is good in its place.

Doubtless if an executor, acting reasonably and in good! faith, disburses money pursuant to an order or direction of the-court which it had jurisdiction to make, he is protected in so doing, and, so long as he acts reasonably, he is not obliged to anticipate an appeal and for his protection delay proceedings until the time thereof shall have expired. That must be so, otherwise the administration of trusts under judicial supervision would be intolerably impaired. That courts have so« ruled, as counsel contend, would be taken for granted. Vaughn v. Walsh, 122 Wis. 486, 489, 100 N. W. 840; Ernst v. Freeman's Estate, 129 Mich. 271, 88 N. W. 636; Fraser's Ex’r v. Page, 82 Ky. 73; Estate of Pritchett, 51 Cal. 568; Loring v. Steineman, 1 Met. 204; Pierce v. Prescott, 128 Mass. 140; Shores v. Hooper, 153 Mass. 228, 232, 26 N. E. 846; In re Macky’s Estate, 46 Colo. 79, 102 Pac. 1088. Any ordinary order or judgment of the county court, entered without inexcusable fault on the part of the executor, and acted • upon by him, reasonably and in good faith, while not interrupted by any stay or appeal, though within the time for appealing, protects him as to all parties against whom, presently, it is binding. The difficulty is to bring the matters in controversy within such rule. It applies to the regular administration of an estate for distribution under the law or under a, will. The administration here was, largely, under neither, but in violation of both — an' administration of a sort of arbitration agreement, which the parties, attorneys, and guardians ad litem entered into without right. It does not apply if there is such want of jurisdiction as to render the proceedings utterly void. In any event it does not apply in case of want of due care either in respect to properly presenting matters to the county court, or appealing from its determination, •or paying out money on the faith of it, when he knows or has good reason to believe it may be set aside on appeal.

In Harris v. Starkey, 176 Mass. 445, 57 N. E. 698, it was held, on principle, that after distribution of an estate by an executor, acting in good faith and without inexcusable negligence pursuant to a judicial direction within the competency of the court to make under any circumstances, the matter cannot be opened up to enable a person who has been, by mistake or ignorance of the executor and court and without laches on the part of such person, omitted from the order, to the prejudice of the executor; that such person’s remedy, aside from obtaining a correction of the order, so far as necessary, is against those who have received the property for contribution to make up his share. Doubtless that states theo general rule. An administrator or executor is a mere judicial instrumentality in tbe settling of an estate. He has a right, in general, to rely upon the court in disbursing money coming into his hands. He is a mere agent, that is all, and an agent supposed to act with promptness and fidelity under superior authority. The negligence in disbursing money, as executor or administrator, to make him personally liable, must needs be very manifest, — so great to at least amount to bad faith, something like what is called gross negligence— such utter disregard of duty as to amount to constructive intent to wrongly dissipate the funds.

It would be a very hard rule which would excuse a judge for rendering an erroneous or void judgment and hold his mere agent, acting in good faith and without inexcusable negligence, personally liable for acting in reliance upon an order or judicial’direction which the court has competency to make under any circumstances — considering that such competency includes power to err to any extent within the broad field of the subjects in respect to which it has the right to deliberate and decide. In Harris v. Starkey, supra, we see the distinction drawn between a typical case of want of jurisdiction of the subject matter, as, in case of administration upon the estate of one as dead who is in fact alive, and the situation where the estate, itself, is presently a proper subject for administration though through negligence or ignorance it occurs in a highly improper manner involving judicial errors of a jurisdictional character. The former fits the distribution of the $20,000 in circuit court, as we have seen, since there was no jurisdiction of the subject of making or deciding upon a scheme for distributing the estate of a deceased person independently of the testamentary or statutory way. We do not see any way for the executors to escape personal responsibility as to that, though we confess it is a great hardship upon them, since they acted under professional advisers in whom, under ordinary circumstances, they would have a right to rely. Moreover, acted on the judicial advice of the circuit judge.

However, on grounds of public policy, it seems, an executor is not protected in distributing the property of the estate he represents by a direction which is wholly void. The twenty-thousand-dollar distribution did not become legalized to any extent because it was allowed as a credit in the county court. The money was disbursed under the circuit court judgment. The former court did not deliberate in regard to it in any respect. The direction of the circuit court was so void of authority as not to form a legitimate basis for action of any sort. It was within the doctrine, void things are as no things. As applied to a judicial direction or adjudication void for want of power, they do not bind any one otherwise than within the''rule of estoppel in pais. It is well said not to “be attended with any of the consequences of a valid adjudication;” that it neither affects, impairs, nor creates rights; that “As to the person in whose favor it professes to he, it places him in no better position than he occupied before; it gives him no new right, but an attempt to enforce it will place him in peril.” “As to the person against whom it professes to be rendered, it binds him in no degree whatever.” 1 Black, Judgments, § 170. We may well note in passing, the fact that the state, to the knowledge of the county judge, insisted upon treating the participants in the division of the $20,000 fund as legatees to the extent of four fifths thereof, and they submitted thereto, paying the inheritance tax in due course, thus inferentially confessing there was no power in the court to award the large sum as legitimate expenses or there was some inexcusable fault somewhere resulting in an improper depletion of the estate.

Coming down to the distinctively county court matters, we find a different situation to some extent. The court there had full jurisdiction of the subject matter of settling the estate. Therefore, every order or direction made therein, however erroneous, so far as acted upon by the executors in good faith, protects them. If by reason of such action parties have received money which it is finally determined they have no right to retain, the remedy must he wholly against them. In such a case, as we have seen, the order oí direction may he modified so as to clear the way for remedial action against the receiver of the money, and, in a proper case, the remedy against such party may be pursued incidental to the direct attack upon the order

It is not easy to separate utterly void matters in this case from those which are wrong in fact though right in law as regards efficiently protecting the executors against personal liability in' acting thereon in good faith.

So, it is considered that, in so far as the trial court held that the executors were personally liable for the overpayments in county court to attorneys and the guardians ad litem, error was committed. Whether the error is one of fact or law does not clearly appear. The indications are that the trial court considered that, if there were overpayments, the executors were liable as matter of course, which was wrong. All distributions approved or directed by the formal order, except, the $20,000 and the $8,000 to Mrs. Cowie and three of the grandchildren, which are referable to the circuit court judgment, must be regarded as having been, however erroneous, made, pursuant to judicial direction, within the jurisdiction of the county court, and as to the executors made within the protection of the rule before indicated.

The foregoing leaves for consideration the questions raised in the several appeals by the persons who received the $10,000, that the appellants from the final order of the county court are estopped from complaining because of their having participated in all proceedings up to and inclusive of the making of it without objecting to what was done, particularly because of keeping silent till tbe money was segregated from tbe trust fund and became tbe individual property of tbe recipients.

We are unable to see any elements of estoppel in tbe matter for want of indications that tbe parties receiving tbe money did so to tbeir prejudice, by reason of tbe attitude of tbe beneficiaries, if they should be permitted by a change of position to recover.

However, waiver may be just as efficient to extinguish a right as estoppel, and requires no real prejudice to tbe person receiving tbe surrender in case of a change of position, as indicated in Pabst B. Co. v. Milwaukee, 126 Wis. 110, 105 N. W. 563. As there said, in effect, tbe defense of waiver does not require any consideration beneficial to tbe waivor nor any element of estoppel, but it does require that tbe waivor shall possess tbe full capacity to surrender tbe right claimed to have been surrendered. So we turn to an examination of tbe record and claim of tbe parties to see whether such capacity exists in this case or not.

Much is said about tbe presence of Mr. F. (x. Cowie, bus-band of Mrs. Cowie, during tbe proceedings, be being referred to once particularly and other times in general as if be was permitted to largely manage tbe matter in which tbe beneficiaries were interested, particularly on tbe side of bis family. Tbe estate as such and tbe minors by tbeir general guardians do not appear to have been represented at all, either in making tbe contract for attorneys’ fees with Ryan, Merton & Newbury or in adjusting tbe attorneys’ fees at $2,500 for each of tbe four interests. Mr. Cowie appears to have been in evidence, even to levying $150 on Ryan, Merton & New-bury and a like sum on Mr. Locleney after payment to them of $2,500 each, to ward off an appeal, apparently,- — another of the singular circumstances in this case.

Now, Mr. Cowie bad no authority to bind tbe minors directly or through tbeir general guardians. His, apparently, efficient interference in the matter commenced before the illegal circuit court contract and seems to hare subsisted to the end. USTo estoppel can he predicated as to the minors or any member of the Bice family on anything he said or did. He had no grievance and is not to he recognized in the litigation. As to Mrs. Gowie, she had no authority to hind any one hut herself and she had very little interest any way, — none giving her any legitimate present personal concern in any of the trust fund. She had no authority to bind the minors and could not estop them hy her conduct. They were represented in court hy their guardian ad litem, who seems to have left his duties largely to the mothers of his wards and their attorneys, or left them entirely unrepresented or’misrepresented in respect to the proceedings of December 24, 1908, and that of January 9, 1909. The wards had no present interest in the trust fund any way and neither did the adults. The money was in the executors’ hands to hold in trust for a time which .might probably reach beyond the lives of most of the beneficiaries. The situation was such that, quite likely, some of them would not survive to participate in the fund. Who-would be the final takers no one could tell. The share of all the Rice children might ultimately fall to Lloyd (Beebe) Cowie. The youngest child of Mrs. Gowie had a contingent right to the whole. So the entirety might ultimately fall to some one who was a minor when the transactions occurred. The doctrine of estoppel, in the absence of bad faith, as well as the doctrine of waiver, does not apply to such persons. Blackman v. Baumann, 22 Wis. 611; Wilkinson v. Filby, 24 Wis. 441; Bigelow, Estoppel, 605, 609; 2 Herman, Estoppel, § 1107. ' In the situation stated we are unable to see how any of the participants in the transactions in question can shield themselves behind an estoppel in pais. Possibly they might as to Mrs. Gowie, but her interest under the will is so remote that such an estoppel would not make any substantial difference in the result. In any event, the doctrine of estoppel is based on equitable considerations which do not seem to be sufficient at any point to make it effective here. No one concerned in the matter had any share which would enable him to say anything or do anything which would preclude complaining of the result on behalf of the appellants representing the minors, and they include persons, as we have seen, who may ultimately take the whole net estate and accumulations. Under all the circumstances the executors and attorneys and guardians ad litem, must be considered as having received, with their eyes wide open so to speak.

The points already discussed and determined render others raised by some one or other of the parties immaterial. We will take occasion now to say that every matter suggested by either party has been examined. Such as have not been and not later specifically noted, have been deemed immaterial in view of the decision upon the others. Practically the whole case on the part of those who advocate the order of the county court and complain of the modification thereof in circuit court, except what appertains to the proper allowance to the executors for expenses in county court, including those for their attorneys, and the allowance to guardians ad litem, fails largely on account of dependence upon the utterly void circuit court agreement and the incompeteney of any one in the subsequent proceedings, as we shall see, to estop the minors from insisting upon the integrity of the trust by will being preserved, so far as practicable, and carried out. On the other hand, the case on the part of those who challenged the county court’s final order on appeal to the circuit court and now complain of the result on such appeal, is, in its main features, supported by the condemnation of the circuit court agreement and judgment.

It is clear from what has been decided that the final result must take a wide range here. The appeal from the county court was from the whole order. The court, with all the parties before it and evidence to show clearly the whole sitúa.tion as regards the basis upon which the administration of the ■estate proceeded from the time the appeal was taken from the .admission of the will to probate, had jurisdiction of the whole ■subject covered by the order. The action as organized in circuit court was not limited, necessarily, to the specific issues tendered by pleadings. The parties mainly interested as appellants were wards of the court. The general appeal and issues tendered, under the circumstances, opened up the whole ■subject of the validity of the scheme which was illegally substituted for that of Mr. Eice. Only upon that being held valid and the judgment, in form, giving judicial effect to it .also valid, could the disbursement of $30,000 for attorneys ■and guardians ad,litem fees, particularly any of the $20,000 at first paid out on that account, be sustained. Therefore, the circuit court, had it not erred in'refusing to go behind .such judgment, would have gotten into a field on the evidence received notwithstanding such ruling where findings would have been required in harmony with the conclusion we have reached. The findings excepted to,_ allowing attorneys and guai’dians ad litem fees, necessarily-reach into a field developing the fact that the whole scheme of administration as regards such expenses had its inception in the circuit court .agreement and was dominated thereby to the end. The readjustment of such matter leads to the decision that such scheme was wholly void. That leaves the will as if such scheme had never been thought of. The court cannot make any disposition here' or direct any below upon the theory that it, or anything done pursuant to it, was valid. So in remanding, the ■court must necessarily make such directions as will require a restatement of the executor’s account' in harmony with the testamentary ,trust, protecting him from personal liability, ■so far as he is legally or equitably entitled thereto. That the judgment, will strike both ways and heavily upon those who were active in bringing the matter to the attention of the court, cannot be helped. It could not well have been expected that the expenses for attorneys and guardians ad litem would, be readjusted on lines inconsistent with the substituted scheme for distributing Mr. Eice’s estate, without jeopardizing all which was done under it, and quite likely require the-court, in vindication of judicial administration, so far as-possible, to adjudge a restoration of the testamentary trust to all the dignity which it should hare had from the first, so far as that can be done. If Mrs. Cowie, who, by aid of her professional and nonprofessional advisers, was largely the-cause of the unfortunate situation and temporarily a chief gainer thereby, in pursuing the matter to the circuit court and further here, on behalf- of herself and minor child, or children, unwittingly courted the undoing of the whole illegal scheme whereby her father’s wishes were displaced,, largely to her benefit, and so aided, without intending to,- in remedying the mischief so efficiently produced, that can make-no difference. She, as general guardian, and Delia A. Rice-acting in the same capacity, may well have considered the wards to be truly aggrieved by the destruction of their grandfather’s will and the illegal dispersion of his estate. If, appreciating their own pecuniary status, they, consciously, made-á great sacrifice, particularly Mrs. Cowie, in order to restore-the status of things under the will, so far as possible, that may well be regarded as quite a redeeming feature of the case and require, if nothing else does, a reinstatement of the status respecting Mrs. Cowie’s claim as it stood when she surrendered' it in consideration of the illegal agreement being made for-distribution of her father’s estate. In this connection we will' say that, it is considered that such claim should be reinstated and appropriate proceedings be directed for affording Mrs. Cowie ample opportunity to establish whatever claim she had' against her father’s estate, which she gave up in signing the-circuit court agreement and securing to her full benefit thereof in the final termination of the litigation.

We now reach the question of whether the circuit court rendered a judgment too favorable to the attorneys, guardians ad litem, and the executors, raised on the appeal of those who challenge the county court settlement, and whether too favorable to the latter, raised by the five separate appeals taken by the former, having eliminated that part relating to the services of the firm of Ryan, Merton & Newbury and also that part relating to Mr. Daubner, except $40 allowed for his appearance in county court prior to the appeal from the order admitting the will to probate. As we have seen, the circuit court erred in failing to hold that the county court should not have allowed any of the $20,000 distributed' pursuant to the circuit court agreement, in failing to hold that none of the things done pursuant to such agreement were compensable, and in holding that the agreement under which the $2,500 was allowed to Ryan, Merton & Newbury was valid, and in justifying burdening the trust funds with their claim. We must also hold that the circuit court erred in allowing Mr. Daubner anything for appearance as guardian ad litem in the county court in view of his having already possessed himself of $2,500 of the trust under the illegal agreement and misrepresented his wards in respect thereto. He pleaded that he earned his part of the circuit.court distribution because he substantially saved his. wards from surrendering anything, and obtained material present benefits for them, particularly Lloyd {Beebe) Gowie, dn place of the entire enjoyment being postponed for a long term of years, and that he demanded the concession from Mrs. Gowie as a condition of signing the agreement because she owed him. He misconceived his duty as guardian ad litem. That was to protect his wards’ interest in the testamentary scheme if it was valid, not endeavor to obtain the same or a greater interest by destroying it. Mr. Rice, evidently, arranged the matter as to such wards as he thought was for their best interests, in the long run, and in any event, just as he wanted to. It was one of the duties of Mr. Daubner, under the circumstances, to defend tbe testamentary plan. Instead of doing tbat be was, as be testified, one of tbe leading spirits in displacing it by a scheme taking bnt a few days, at most, of nonlegal professional work from any viewpoint, and involving a division of one fifth of tbe estate between himself and bis associates. Moreover tbe incident of demanding a large amount of money from Mrs. Gowie as condition of doing tbat which be assumed to be bis duty to bis wards, cannot be overlooked. If it were proper for him to sign tbe circuit court agreement at all, then it was highly improper for him to demand anything from Mrs. Govde as a condition of 'doing it, whether she owed money to him or not. So we cannot well escape tbe conclusion tbat since Mr. Daubner gained bis opportunity to participate in tbe illegal transaction in tbe circuit court by bis brief connection with the estate in tbe county court, be should not be allowed anything for his appearance in tbe matter.

What has been said respecting tbe scope of tbe guardian ad litem’s duty and tbe departure therefrom by Mr. Daubner, applies largely to Mr. Locleney. It was bis duty to vindicate tbe will, if it was valid, rather than to enter into any scheme to supersede it. He evidently did not appreciate tbat to enter into the transaction to do tbe latter and secure $2,500 to himself in tbe arrangement, participating, in order to do :so, in taking $20,000 from tbe trust fund for division, as was done, was not serving bis wards in any proper sense, but such, we are constrained to bold, is tbe fact. In tbe subsequent proceedings in county court there was very little for him to do, strictly, as guardian ad litem. There was nothing requiring him to take any active part in tbe heading on claims or any other matter. Tbe fact tbat be operated with others under tbe general arrangement to administer tbe estate by agreement, and in doing so performed a considerable amount of work which tbe attorneys for tbe executors should have done, does not help bis case. It must be looked at from tbe standpoint of what was reasonably necessary or proper for him to do for his wards. His compensation was not fixed on that basis at all, .but on that of his legitimately having done in the settlement of the estate as much as the attorneys for the executors. That came from the fact, that the whole matter was handled by agreement and not with reference to legal duties and responsibilities. Had Mr'. Loclcney merely entered appearance whenever necessary in the proceedings to enable the court to make a binding and orderly termination, stimulated the executors and their attorneys to do their duty, and occupied an advisory or adversary attitude toward them as occasion required, and otherwise remained passive in the administration proceedings, unless there was some reasonable necessity to do otherwise, he would have performed his whole duty. His power was-very limited. It did not extend to dealing at all with his wards' property rights. He was in reality an assistant to the court in the administration, with duties of a quasi-ofñaial character., He should have occupied an adversary position wherever his wards’ interests were liable, by any possibility, to be impaired. He could not, properly, have entered into any private-bargain for his own benefit at the expense of the trust fund, or stipulated it away, or entered into any agreement, binding on the parties or entitled to recognition by the court, respecting his own compensation or that of others concerned in the matter, or, properly, have remained passive, in respect to a contract known to him to exist whereby others were assuming, or had assumed, to represent his wards in the proceedings at their expense, or employ an attorney, or permit one to be employed, for them without some extraordinary reason and judicial authorization thereof, since adequate professional capacity 'in the premises is supposed to have been requisite to his own appointment. To stipulate away a ward’s property or consent to any judgment or order adverse to his interests is utterly beyond the guardian’s jurisdiction. Will of McNaughton, 138 Wis. 179, 118 N. W. 997, 120 N. W. 288. In the circumstances of this case from the viewpoint of an orderly administration by competent executors represented by competent attorneys, there was little for a guardian ad litem to do except to stand guard — (to act in a purely advisory capacity as said in Smith v. Smith, 69 Ill. 308, approved in the McN aughton Case)— and we could not say there was, necessarily, much of that of a really professional character, without casting grave criticism upon the attorneys for the executors.

Now the basis for compensation for services of a guardian ad litem, under all ordinary circumstances, is firmly established by numerous adjudications of this court. Such rule is quite general, applying to all quasi court assistants. Richardson v. Tyson, 110 Wis. 572, 86 N. W. 250; Speiser v. Merchants' Exch. Bank, 110 Wis. 506, 86 N. W. 243; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909; Will of McNaughton, supra.

Notwithstanding what has been repeatedly said here, the nature of a guardian ad litem’s duties and the standard by which his compensation should be measured were entirely misconceived in this case. The office of gnardian ad litem is not a place to be sought for, or used, or allowed to be used, as a vocational situation like that of an attorney, in general, much less for taking large sums of money from property belonging' to wards for private enrichment. The position is one of trust and confidence toward the ward as well as the court, — to be accepted as matter of duty, to a large extent. Formerly it was considered entirely of that character and the labor performed, done cum onere as said in the McN aughton Case. The appointment is for the purpose of aiding the court to adequately protect those who are without capacity to protect themselves. The acceptor of an appointment to that trust, should be as careful not to do anything, or allow anything to be done, to the prejudice of his ward’s interests, as the court from which he receives his appointment, and not to demand, or expect, compensation except upon the high plane of sound public policy and professional ethics, indicated in the cases cited.

It is considered that, under all the circumstances of this case, the compensation for Mr. Lockney in the county court ■should be limited to $150, that being reasonable, within the meaning of the statute, for full performance of all the duties which devolved upon him. If he did a large amount of the work which properly belonged to the attorneys for the executors or to the executors themselves, as probably was the case, the compensation due to him as guardian ad litem does not' properly include it.

On one appeal error is assigned because of failure to make a greater reduction of allowance for legal services rendered the executors in county court, and on appeal by the executors ■error is assigned because of the reduction made.

The evidence relied upon by counsel for the executors is of little help. It was not directed to such services as would have been required had the estate been administered under the will and one attorney, or firm of attorneys, been employed. As indicated in the statement, except'for the unnecessary complications, the estate, considering the size, was a very simple ■one to settle. There were very few claims, no serious contests, one appeal to the circuit court, and that settled without trial, and only a few days’ time spent in actual professional work. The will was allowed after a brief hearing and, eliminating the period of substantial suspense by reason of the appeal, the final order was entered in about a year and four months thereafter. Taking account of the service performed by Mr. Lockney at the same rate, the reasonable value of all on account of the estate in county court was testified to be .some over $20,000, and in both courts $40,000. Without going over the evidence in detail, suffice it to say, the amounts testified to, in connection with the work actually and necessarily done, are so extravagant as to indicate that the witnesses gave evidence upon false bases not only as to the com-pensable work done but as to tbe nature of it and the standard by which it should be measured. Much was really clerical work. Probate work, in general, is simple. In the main the work here did not require any very high degree of legal learning or much of it. Generally speaking, the greater part of such work is done, as it evidently was here, by law clerks and junior partners. Eliminating nonprofessional work, such as should be included in the statutory compensation to the executors, and work caused by the disturbance of the testamentary scheme, such professional work as was reasonably necessary to a proper handling of the estate, considering that one attorney, or firm thereof, was sufficient, would seem to fairly measure by. $2,500. There was no excuse for directly employing the two firms of the attorneys for the executors and indirectly two others, taking the guardian ad litem, as one and Ryan, Merton & Newbury as the other, all of which, apparently, by consent of the attorneys so directly employed.

Such unbusinesslike handling of an estate as the record shows merits the severest condemnation as do the claims for the extravagant amounts for doing such work. As has previously been said, if there is any place where property should be really safe from spoliation, it is when in custodia legis. Trusts under immediate judicial control, such as those created by law and by will, should be administered with the highest attainable degree of care, fidelity, and economy. There should be no good reason for a popular idea that when property passes into a trust of that kind, it enters a danger zone-involving a high degi’ee of uncertainty as to the outcome to* the intended beneficiaries. No waste should be permitted and expenses should be kept down to the lowest practicable-point. Administrators, executors, and guardians ad litem should strive for distinction in this and courts should stimulate that spirit and firmly check all tendencies to useless expenditure or unbusinesslike handling. This court has several times spoken on that subject and, in the whole, established a policy which will be firmly adhered to- and should be referred to for guidance in trial jurisdiction. Such policy has been so long established that it must be presumed to be familiar.-

In fixing the allowance to the executors for attorneys’ fees-in this instance at $2,500 the court has taken into consideration that. executors should execute^perform their duties— not take the pay therefor and largely ábdióate performance to* others, calling all professional services, with a multiplication of attorneys and assistants, as-here. 'In Harrigan v. Gilchrist, supra, two attorneys were employed where one was-ample. The work was many times that required in this instance and took many times the amount of the highest obtainable professional work, covered many times the period here,, and was performed, as was thought, with considerable distinction. The amount of compensation therefor was fixed at $10,000. Many other examples might be given to emphasize the result. The policy of our unwritten law in respect to the matter, till disturbed by the legislature-, .will be firmly administered here as occasion may arise therefor, — the rule1 being made more strict rather than softened, if necessary to* prevent recurrences, apparent or real, of improper exploitation of similar trusts. Administrators thereof should excel all others in economical, judicious management and approach to the ideal of full performance of legal, ethical, professional, and official obligations. ~ -

The result as to the several appeals is this:

On the appeal of the beneficiaries the judgment must bes reversed. As to each of the other appeals, the beneficiaries; and respondents as one constitute the prevailing party, except; as to that part of the judgment adjudging the executors personally liable for excessive disbursements in county court im compliance with orders of such court. .

The general policy of giving such directions, in case of a reversal, as will terminate the litigation unless further pro-eeedings seem reasonably necessary, will be followed bere. Tbe whole history of the subject dealt with appears, probably, as clearly in the record as it can ever be made to appear. The broad superintending control jurisdiction of this court, supplementing its appellate jurisdiction, affords ample competency to give such directions for closing up the controversies in the court below in accordance with this opinion, as will enable such court to readily cover all details of a general decree disposing finally of all complications, as was done in Harrigan v. Gilchrist, supra.

Preliminarily, we will say the litigation, appropriately under the circumstances, took the cast below, as in the Ilarrigan Case, of a suit in equity to settle the rights of many parties and they were appropriately arranged on the record according to their adversary status, as near as practicable, — the beneficiaries under the trust as plaintiffs, and those charged with having possessed themselves illegally, or excessively, with portions of the trust fund, or failed to properly account therefor, as defendants. So arranged, the court, taking the whole mass of things into its equity jurisdiction, had ample power to decide all matters raised by the issues tendered, and all others appearing in the litigation by the undisputed evidence, necessary to be decided to protect the minor beneficiaries.

Eor all those purposes the general appeal from the county court opened up the whole subject covered by the final order as fully as such court might have viewed'it, with added power of the higher jurisdiction as to remedial relief. The question as regards the payment of the $20,000' to the attorneys and guardians ad litem pursuant to the circuit court agreement, was necessarily involved in the litigation. Solution of it against the propriety of such payment would have been below, as it has been here, fatal to the agreed displacement of the testamentary scheme upon the ground that it was utterly void. That out of the way there would have been no other course to pursue, as there is not now, but to require a restatement of tbe executors’ account and' restoration of tbe testamentary trust to wbat it was designed to be, so far as practicable.

Probably tbe income improperly paid, to the grandchildren cannot, readily, if at all, be recovered back into tbe trust, nor tbe income improperly paid to Mxs. Oowie, nor tbe $8,000 of corpus distributed to her and tbe Bice children, or for their benefit under tbe circuit court agreementr But accounting must be bad as to each of tbe several matters, each particular one being covered, remediably, in tbe general decree, so, in tbe aggregate, to remedy tbe improper handling of tbe trust fund and restore tbe integrity of Dr. Nice’s scheme for tbe distribution of bis property s'o far-as can be. In making such ending, we must keep prominently in view tbe plain intent of tbe testator that tbe entire property and accumulations, with some small exceptions, should remain in tbe bands of tbe trustee till tbe termination of tbe trust period. He did not intend there should be any disturbance of that part of bis plan under any circumstances, so neither tbe parties nor tbe court have any right to do so.

By the Court. — Judgment is ordered as follows:

1. On tbe appeal of Mrs. May B. Cowie and her associates tbe judgment of tbe circuit court is reversed.

2. As to each of tbe four other appeals tbe appellants will take nothing, except on tbe appeal by tbe executors that part of tbe judgment adjudging them personally liable for excessive amounts paid for expenses of attorneys and guardians ad litem in tbe county court, is reversed.

3. Costs are awarded in this court in favor of appellants May B. Cowie and her associates on all appeals.

4. Tbe cause is remanded to tbe circuit court with the following directions:

(a) To reverse tbe final order of the county court in so far as it discharged tbe executors or is inconsistent with tbe settlement of tbe estate as directed by this judgment.

(b) To cause an account to be stated as to Lloyd (Beebe) Gowie, Lulu G. Bice, Rhea Frances Bice, and Magdalena G. Bice, and charging each with income received and any sum advanced out of the corpus of the estate pursuant to the circuit court judgment in the will contest appeal, directing $1,000 to be paid to or for the benefit of the Bice children, with interest at four and one-half per cent, per annum on each item from the time received to the date of the accounting of the parties and crediting each with any sum which she was entitled to receive in the meantime under the will, except where payment was made by any one interested instead of out of the trust fund, and in that case giving the credit to that one, and giving credit of interest at the aforesaid rate on each item down to the date of closing the account, the balance in each case to be adjudged to be due to the trustee as a part of the trust fund and be carried by him as a debit charge, with interest added at the end of each year on the total of the account till the termination of the trust, and then disposed of according to the rights of the parties as they shall then appear, the decree to contain appropriate direction in respect thereto in accordance herewith.

(e) To cause an account to be had with Mrs. May B. Gowie as to all sums received by her from the trust fund with interest at the rate aforesaid on each item from the time received down to the closing of the account; to grant her a hearing, if applied for, 'within twenty days after the filing of the remittitur, on the claim she released in consideration of supposed benefits received under the will contest judgment, such claim to be considered as revived for that purpose as of the time it was so released, any sum found justly due thereon to be credited on the amount of the items charged to her as aforesaid and a recovery for the balance be adjudged in favor of the trustee — the decree to provide that the same, so far as not paid, shall be carried by the trustee in his account as a charge against her till the termination of the trust, interest to be accumulated as in otter'eases and ste be credited witt any sum coming due to ter under tte terms of tte trust, tte balance at suet termination to tten be disposed of in favor of tte parties interested in tte trust as a part of tte trust fund.

(d) On due application tterefor to cause-an account to be stated as regards tte dealing by executors witt tte trust fund, ctarging ttem, as of tte date of tte final account in county court, witt tte amount of tte debit total estate as tten adjusted, to wit, $187,084.09, witt interest on tte $28,000 disbursed under tte circuit court judgment and crediting ttem witt tteir expenses and disbursements as therein allowed, save and except said $28,000, to wit, $78,626.25, and also witt tte deduction of $5,566.35 reported as income and subject to disbursement as suet, wtereby tte balance was arrived at of $74,891.39 witt suet balance, assuming that tte same, was turned over to tte trustee according to tte county court’s order, and to provide by tte decree for a recovery in favor of tte trustee of tte balance with interest at tte rate aforesaid, brought down to the date of closing the account, tte judgment not to be enforced as to tte amount represented by any judgment for a recovery of any person, or persons, who tad the benefit thereof, till all legal remedies stall have been exhausted to recover the same of suet person, and in case of payment -to the trustee by tte executors of tte sum represented by suet judgment or any balance thereunder, they to be subrogated to tte rights of the trustee in respect thereto.

(e) To provide in the decree for recovery in favor of the trustee from Henry Lockney of $4,850, less tte amount paid by him for inheritance taxes, witt interest on the balance at the rate aforesaid from the time tte money was received.

(f) To provide in the decree for a recovery in favor of tte trustee of tte members of the firm of Oonnell & Weidner of $6,350,.less the amount paid by ttem for inheritance taxes, with, interest on the balance at the rate aforesaid from the time the money was received by them.

(g) To provide in the decree for a recovery of the surviving members of the firm of Ryan, Merton & Newbury, in favor of the trustee, of $7,500, less the amount paid for inheritance tax by such firm, with interest on the balance at the rate aforesaid.

(h) To provide in the decree for a recovery in favor of the trastee of the surviving members of the firm of Nath. Pereles & Sons of $6,350, less the amount paid by said firm for inheritance taxes, with interest on the balance at the rate aforesaid from the time the money was received.

(i) To provide in the decree for a recovery of G. Holmes Da/ibSner of $2,540, less the amount of the inheritance taxes paid by him, with interest on the balance at the rate aforesaid from the time the money was received.

(j) To the end that the decree may be perfected, as indicated, to order the trustee brought in as a party plaintiff and such decree be framed and entered with all convenient speed with all appropriate detail conformable to these directions and this opinion.

The prevailing party, May B. Cowie and her associates, will be entitled to tax costs for printing the case on their appeal and for printing one brief, divided equally between the several appeals.

A motion was made by the attorney for the prevailing parties for a modification of the mandate so as to permit the custodian of the trust property to pay such attorney such reasonable compensation for his services in conserving the interests of the cestuis que trustent as, to the court, might seem just, and for such further order as to the court might seem just and proper. The motion was supported by affidavit of the attorney to the effect, that the E. G. Cowie mentioned in the decision, pretending to hold written authority from the beneficiaries, employed sucb attorney to commence tbe proceedings to recover into tbe estate tbe moneys wbicb bad been wrongfully diverted therefrom, on a contingent fee of twenty-five per cent.; tbat pursuant thereto' be rendered tbe services which resulted in restoration of tbe trust fund, as indicated in tbe opinion on file, and tbat in tbe situátion of tbe case there is no one authorized to pay for sucb services out of tbe trust fund, except upon judicial direction, and tbat in no other way can be obtain compensation for bis valuable services than by burdening sucb fund therewith.

On tbe bearing, it was disclosed tbat E. G. Gowie, after all tbe transactions bad occurred wbicb led to tbe appeal to tbe circuit court, in form, obtained a power of attorney to proceed in bis discretion to recover any money wbicb bad been paid improperly out of tbe trust fund, be to have fifty per cent, of tbe amount recovered; and pursuant thereto tbat be farmed out tbe work to tbe attorney for one half sucb contingent compensation.

Tbe motion was opposed by affidavit, joining issue with some of tbe allegations of tbe affidavit in support of tbe motion and stating that there are facts existing showing tbe transactions of said Cowie with tbe beneficiaries, or some of them, in respect to tbe matter to have been unauthorized and be unconscionable.

In presenting tbe motion tbe specific relief requested was departed from. A copy of tbe written contract between E. G. Gowie and tbe attorney was produced, reciting that tbe former held written authority from tbe beneficiaries to recover to tbe estate and tbe beirs moneys and property supposed to rightfully belong to said estate and said beirs, and wbicb bad been wrongfully diverted, and tbat pursuant thereto, on behalf of himself and tbe beneficiaries, be employed tbe attorney to take steps tberefor upon a contingent fee of twenty-five per cent, of tbe gross amount recovered. Upon tbe case thus made tbe court was requested to modify tbe mandate so as to authorize the trustee to carry out such contract.

In support of the motion there was a brief by G. F. Armin, in pro. per.

In opposition thereto there was a brief by George H. Gabel, attorney for Lulu 0. Bice, Rhea F. Hmbaugh, née Bice, and Magdalena G. Bice, beneficiaries under the will.

The following opinion was filed October 8, 1912:

Maeshall, J.

Perhaps the less said, in addition to what appears in the opinion respecting the events leading up to presentation of the history of the Rice estate the second time in circuit court, the better. Enough appears in the opinion on file to indicate that the contract whereby F. G. Cowie sought to acquire a large portion of the trust estate and farm out one half of such portion to Mr. Armin, forms no legitimate basis for a charge upon the trust fund in favor of the latter. Neither the cestuis que tmsteni nor any one else could properly destroy the trust created by Dr. Rice in that way any more than by the ways previously attempted. Plainly, the contract did not contemplate restoration of the legitimate trust but execution of the illegitimate disposition of the property, only contesting the manner of the execution in county court. It had no greater dignity as to Armin, if even that, than the transaction condemned in the opinion.

Notwithstanding the foregoing Mr. Armin commenced and conducted the proceedings which, eventually, came to the form of an action to restore the trust created by Dr. Rice and was, in form at least, and in fact, so far as possible, successful. He was not concerned in any of the transactions which made the appeal from county court necessary. He was recognized from the time the appeal was taken till the final termination of the matter in this court as the representative of the beneficiaries to secure such relief as they were entitled to. He became, in the course of events, in effect, the representative of the trust estate to secure its restoration, the same as if he had been employed by the trustee.- He acted as efficiently as if. he had received such employment by authorization of the court haying jurisdiction of supervising the execution of the trust. The fact that the result of the litigation was much more far-reaching than was expected, even by the attorney, and placed the net property of which Ur. Eice died possessed, less legitimate expenses of administration, under the control of the trustee to hold for a long time as was originally designed, instead of under the control of .the beneficiaries under an illegitimate plan of distribution, does not militate against the fact that Mr. Armin so challenged the conduct of all parties concerned with handling the estate, as to bring the whole subject to the view of this court and within its jurisdiction to -remedy the numerous wrongs which had been committed. Such being the case, that it is within judicial power to burden the trust estate with such sum for counsel fees for the services which were beneficial to 'the trust, in a pecuniary sense, as is reasonable, under all the circumstances, seems plain.

The situation was such that there, really, was no trustee to act in respect to restoring the trust fund. The executors, the persons named as trustees in the will and the one appointed by the court, were all adverse to such restoration. In that situation any cestui que trust was a proper party to move in the matter. The rule is elementary that, the court having jurisdiction” of supervising a trust, may provide for payment out of the trust fund for reasonable expenses in protecting the trust. In so doing it does not recognize contracts made by beneficiaries fixing the amount of compensation as binding. They are only good to support the claim that the services rendered were not voluntary; that they were requested by those having such interest as, under the circumstances, to give them a right to act. The person rendering the service must always rely upon a mere equitable right to be compensated out of tbe property conserved for sucb reasonable sum as tbe court shall deem proper for tbe services reasonably necessary. Tbe rule is thus stated in 2 Beach on Trusts, § 698 (p. 1599) :

“It is tbe duty of tbe trustee to exercise proper care of tbe trust property, and where tbe occasion arises be must see to it that it has adequate defense and protection. This obligation rests upon him virtute officii. Where a trustee refuses or neglects to give tbe trust property such needful protection, it may be done by tbe cestui que trust/’ . . .

To tbe same effect are 2 Perry, Trusts (4th ed.) § 910'; Dunham v. W. Steele P. & P. Co. 100 Mich. 75, 58 N. W. 627; Rogers v. Vaughan, 31 Ark. 62, 70.

In such a situation as existed in this case, tbe primary duty of restoring tbe trust rested with tbe trustee. Tbe cestuis que trustent possessed the right to act in place of tbe trustee from tbe nature of tbe case. Tbe work performed was, in practical effect, for tbe trustee as well as for tbe beneficiaries. It was tbe same, in reality, as if performed under contract with tbe former. Reasonable attorney’s fees for services actually and rightfully rendered, doing that which is reasonably necessary in conserving a trust estate, are allowable to tbe trustee as expenses, and may be allowed direct to tbe attorney, chargeable to tbe trust fund. They are always within tbe discretion of tbe court, — not controlled by contract. 2 Perry, Trusts (4th ed.) § 910. Tbe right to compensation where the services, from tbe necessities of tbe case, are performed on request of tbe cestuis que trustent is to be considered, with reference to whether they were reasonably necessary, were in fact beneficial to tbe trust, tbe amount and nature of tbe services and extent of tbe resulting benefits. They are also to be fixed upon tbe basis of compensation for somewhat similar services in official life, rather than tbe customary charges as between attorney and client. Sucb situation should be classed with those dealt with in Harrigan v. Gilchrist, 121 Wis. 127, 436, 99 N. W. 909; Tyson v. Richardson, 103 Wis. 397, 79 N. W. 439; Richardson v. Tyson, 110 Wis. 572, 86 N. W. 250.

Witbin the rules mentioned it is proper for this court to fix the amount allowed to Mr. Armin for. counsel fees in this court and the trial court as well, since the record satisfactorily shows all the facts. Ordinarily, this court will not go further than to fix the compensation for services rendered on the appeal, leaving the court below to deal with the matter of services rendered there, under advisory or prescribed directions as seems best; but, in such extraordinary situations as we have here in this case, the better administration is to cover the entire field and terminate the litigation in all respects. That was done in Harrigan v. Gilchrist, 121 Wis. 127, 460, 99 N. W. 909. The reasons which moved the court to take that course then apply quite as forcibly now.

Much of the work by Mr. Armin was not directed to the particular result reached. The overshadowing question in the case — that upon which it turned in the main — was not very helpfully treated, if, even, at all except incidentally. Considering only the services directed in some way to the beneficial result reached, having reference to the integrity of the trust as created by Dr. Eice, and the enlightenment afforded this court in its progress to that end; leaving out of view the labor which only incidentally brought to attention here and within this court’s jurisdiction that which became, in the end, the dominant subject dealt with — labor which was, primarily, calculated to bring about another result, not in harmony with the trust as created by Dr. Eice, it is considered that seven hundred dollars ($700) will reasonably compensate Mr. Armin therefor and for his disbursements in the circuit court and this court, Including such services as may be necessary in order to perfect the judgment in the circuit court according to the directions given here.

The mandate is hereby changed so as to direct payment to Mr. Armin, accordingly, of said sum of seven hundred dollars ($700) in full for all the services and disbursements mentioned, such payment to be made out of the income of the trust fund; but only after judgment as here directed shall have been duly perfected below.