Everts v. Baksic

34 N.W.2d 841, 253 Wis. 446, 1948 Wisc. LEXIS 438

• Court: Wisconsin Supreme Court
• Decided: October 11, 1948
• Status: Published

Opinion

Martin, J.

In this case the will of Mrs. Baksic was properly executed by the testatrix and by the witnesses but was denied probate because A. W. Ponath, one of the subscribing witnesses, did not testify. The evidence shows that Ponath was attorney for the proponent and that he refused to testify and was not compelled to do so.

The probate of a will is a matter of public interest and in this case public policy dictated that the trial court should take positive action in bringing the proper evidence before the court in order to make a determination of the issue presented. Guardianship of Reeve (1922), 176 Wis. 579, 186 N. W. 736; Estate of Staab (1918), 166 Wis. 587, 166 N. W. 326; Will of Rice (1912), 150 Wis. 401, 136 N. W. 956, 137 N. W. 778; Will of Dardis (1908), 135 Wis. 457, 115 N. W. 332.

The controversy in this case has not been fully tried and in accordance with sec. 251.09, Stats., the court orders a new trial be held and the testimony of A. W. Ponath be taken so that the real controversy herein will be fully tried and determined with finality. Will of Burns (1933), 210 Wis. 499, 246 N. W. 704.

By the Court. — Judgment and order reversed, and 'cause remanded for further proceedings in accordance with this opinion.

Broadfoot, J., took no part.