Will of Durkee

Wisconsin Supreme Court

Will of Durkee

159 N.W. 555, 164 Wis. 41, 1916 Wisc. LEXIS 16

CourtWisconsin Supreme Court

DecidedOctober 3, 1916

StatusPublished

Cited by3 cases

This text of 159 N.W. 555 (Will of Durkee) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Will of Durkee, 159 N.W. 555, 164 Wis. 41, 1916 Wisc. LEXIS 16 (Wis. 1916).

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Opinion

WiNsnow, C. J.

We do not find it necessary to decide whether the word “administrator” in sec. 4031, Stats., includes an administrator appointed under the laws of another state. This may admit of doubt. In any event, however, the foreign administrator here is in no respect injured by the dismissal of his appeal. This results because, (1) when a person dies testate, primary jurisdiction to probate his will and grant letters testamentary vests in the county court of the testator’s residence at his death (Will of Hess, 97 Wis. 244, 72 N. W. 638; 18 Cyc. 67); (2) it was necessarily decided by the Kenosha county court, when it probated Dur-kee’s will. and assumed general and primary jurisdiction of the estate, that Durkee was a resident of that county; [44]*44(3) that decision, rendered after due notice to all parties and never appealed from or reversed, settles the question so far as the parties are concerned in all subsequent actions in the courts of this state (Huebschmann v. Cotzhausen, 107 Wis. 64, 82 N. W. 720); it was the duty of the county court to appoint an administrator de bonis non when, after the discharge of the executor and the closing of his administration,' it appeared that there was estate which had not been- administered upon (R. S. 1898, sec. 3804) ; ,(4) the parties agree that there was personal estate left by the deceased consisting of choses in action of various kinds which had not been administered upon; (5) no objection being made to the fitness of Mr. Hastings, it follows from the foregoing propositions that the county court simply performed its duty in making the appointment in question; hence, even if the appellant was entitled to appeal, his appeal would only result in affirmance of the order. Under such circumstances the dismissal of his. appeal, even if erroneous, cannot be considered a prejudicial error. For such an error there can be no reversal. Sec. 3072m, Stats.; Milwaukee v. Plath, 156 Wis. 586, 146 N. W. 782.

By the Court. — Judgment affirmed.

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WiNsnow, C. J.

We do not find it necessary to decide whether the word “administrator” in sec. 4031, Stats., includes an administrator appointed under the laws of another state. This may admit of doubt. In any event, however, the foreign administrator here is in no respect injured by the dismissal of his appeal. This results because, (1) when a person dies testate, primary jurisdiction to probate his will and grant letters testamentary vests in the county court of the testator’s residence at his death (Will of Hess, 97 Wis. 244, 72 N. W. 638; 18 Cyc. 67); (2) it was necessarily decided by the Kenosha county court, when it probated Dur-kee’s will. and assumed general and primary jurisdiction of the estate, that Durkee was a resident of that county; [44]*44(3) that decision, rendered after due notice to all parties and never appealed from or reversed, settles the question so far as the parties are concerned in all subsequent actions in the courts of this state (Huebschmann v. Cotzhausen, 107 Wis. 64, 82 N. W. 720); it was the duty of the county court to appoint an administrator de bonis non when, after the discharge of the executor and the closing of his administration,' it appeared that there was estate which had not been- administered upon (R. S. 1898, sec. 3804) ; ,(4) the parties agree that there was personal estate left by the deceased consisting of choses in action of various kinds which had not been administered upon; (5) no objection being made to the fitness of Mr. Hastings, it follows from the foregoing propositions that the county court simply performed its duty in making the appointment in question; hence, even if the appellant was entitled to appeal, his appeal would only result in affirmance of the order. Under such circumstances the dismissal of his. appeal, even if erroneous, cannot be considered a prejudicial error. For such an error there can be no reversal. Sec. 3072m, Stats.; Milwaukee v. Plath, 156 Wis. 586, 146 N. W. 782.

By the Court. — Judgment affirmed.

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Bluebook (online)

159 N.W. 555, 164 Wis. 41, 1916 Wisc. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/will-of-durkee-wis-1916.

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