Estate of Muellenschlader

118 N.W. 209, 137 Wis. 32, 1908 Wisc. LEXIS 283

• Court: Wisconsin Supreme Court
• Decided: November 10, 1908
• Status: Published

Opinion

BjeRwin, J.

As appears from the statement of facts, Charles Treloff as executor charged the estate with $150 for services and disbursements rendered for him as proponent and executor named in the will by George Sutherland, and the sum of $220.75 costs taxed in favor of said executor and against the contestants in the circuit court for Rock county on filing the remittitur from this court, and $130.30 costs taxed in the supreme court. All of these sums were allowed against the estate in the final settlement of the executor’s account, but the bill of Mr. Wheeler, as well as the expert witnesses’ fees, were disallowed, and the appellant claims this was error. On the part of the respondent it is insisted that the exercise of discretion by the county court in disallowing the items is not subject to review on appeal under the rule laid down by this court in In re Gertsen's Will, 127 Wis. 602, 106 N. W. 1096, and, even if such discretion be subject to review, there was no abuse of it in the judgment of the county court. Counsel for respondent makes an extended argument against the power to review the discretion of the county court in the matter before us, and insists that the statute (sec. 4041a, Stats.: Supp. 1906; Laws of 1901, eh. 397) vests in such court only the power to make an allowance, and, that court having denied it, its action cannot he disturbed on appeal. But in the view we take of the ease it is not necessary to consider the power on appeal to review the discretion of the county court, because, assuming for the purpose of the argument such power exists, we think it clear upon the established facts that there was no abuse of discretion in disallowing the items. Oh. 397, Laws of 1901, being sec. 4041a, Stats. (Supp. 1906), provides:

“Any court of record, in contests arising therein, upon application for the probate of any will, in its discretion, may allow to the proponent of such will a reasonable attorney’s fee, to be paid out of the estate of the decedent, and may also in its discretion allow to the contestant if successful in the circuit court a reasonable attorney’s fee out of said estate for services in such contest in said circuit court.”

The above statute manifestly vests in the court having jurisdiction of the probate of the will discretion in making an allowance to the proponent in will contests, and therefore, unless there was an abuse of discretion in disallowing the items complained of, the judgment below cannot be disturbed. It is insisted by appellant that the court below found that Mr. Wheeler was employed by the proponent and executor named in the will in the contest, but it will be observed that the court also found that the executor had other counsel, and, moreover, Mr. Wheeler was employed by Charles Muellen-schlader, legatee, who appealed separately. It will be observed, further, that Charles Muellenschlader was interested in the will contest, since he was a legatee to the amount of $2,000, and that he and the executor were the only persons interested in- sustaining the will. Upon the whole record we are convinced that there was no abuse of discretion in disallowing the items complained of; therefore the judgment below must be affirmed. Wolf v. Schœffner, 51 Wis. 53, 81 N. W. 8; Marx v. Rowlands, 59 Wis. 110, 17 N. W. 687; In re Donges’s Estate, 103 Wis. 497, 79 N. W. 786; Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650; Speiser v. Merchants’ Exch. Bank, 110 Wis. 506, 86 N. W. 243; McMahon v. Snyder, 111 Wis. 463, 94 N. W. 351; Fox v. Martin, 108. Wis. 99, 84 N. W. 23.

By the Court. — The judgment of the court below is affirmed.