Opinion
March 6, 1957 —
April 9, 1957.
APPEAL from two orders of the county court of Kenosha county: WILMER W. DAVIS, Judge. Affirmed.
For the appellants there was a brief by Kellstedt Young of Peoria, Illinois, attorneys, and Cavanagh, Mittelstaed, Sheldon, Heide Hartley of Kenosha of counsel, and oral argument by William A. Sheldon.
For the respondent there was a brief by Julius Grotsky, attorney, and Vaudreuil Vaudreuil of counsel, all of Kenosha, and oral argument by Mr. Grotsky.
Stout Bobo, a resident of Kenosha county, died March 20, 1955, at Rawlins, Wyoming. Shelby Jean Bobo, his daughter and sole heir, was fourteen years of age at the time of his death. Mary Barton, her mother and divorced wife of deceased, has custody of Shelby Jean. They reside in Illinois.
After Mr. Bobo's death, Mr. and Mrs. Fennel, with whom he had lived, arranged to bring Shelby Jean to Kenosha to attend the funeral. While there, on March 24th, they took her to Mr. Grotsky, who had been her father's lawyer, and petitions were prepared for appointment of a guardian for Shelby Jean and for administration. Both petitions were filed in county court the same day.
The petition for appointment of a guardian is before us as part of the bill of exceptions. It prayed that Paul B. Fennel and Marie A. Fennel be appointed. Shelby Jean subscribed the body of the petition, although through apparent inadvertence she did not sign the verification, which was signed by Mr. Grotsky as notary. She did sign a statement that she nominated the Fennels, and judge DAVIS certified that the nomination was made in open court. The Fennels signed a consent to act. The date was March 24th in each instance. No order of appointment nor letters of guardianship are included in the bill of exceptions, but the record contains several references to the fact of Fennels' appointment as guardians. One such reference was made by Mr. Sheldon at one of the hearings.
The petition for administration was signed and verified by the Fennels as well as by a brother of deceased. The petition alleged that the Fennels were guardians for Shelby Jean. Shelby Jean also signed an affidavit indorsed upon the petition that she joined therein.
The court ordered a hearing on April 19, 1955, and that notice be published. Mrs. Fennel appeared at the hearing in person and by Mr. Grotsky, and testified as to heirship. The Fennels were appointed administrators and letters issued upon approval of their bond. Although an order was entered appointing Attorney John A. Kennedy guardian ad litem and he signed a consent, all on April 19th, the record does not show that he appeared at the hearing.
On August 18, 1955, Shelby Jean and her mother petitioned for appointment of Attorney W. A. Sheldon as guardian ad litem in both the estate and guardianship. He was so appointed by an acting county judge.
Mr. Sheldon then petitioned for an order removing the Fennels and vacating the proceedings. He alleged that the original petition was not made by the widow or heir-at-law. Judge DAVIS filed a decision stating that in the court's opinion the best interest of the minor would be served by the removal of the Fennels and the appointment of a corporate successor. The court stated that no reflection upon the Fennels was intended. On October 6, 1955, it was ordered that (1) Mr. Sheldon's petition be dismissed, (2) the Fennels resign and account, and (3) the Kenosha National Bank be appointed. The Fennels did resign and account.
On December 15, 1955, Shelby Jean and her mother petitioned for an order requiring the bank to show cause why it should not engage Cavanagh, Mittelstaed, Sheldon, Heide Hartley as attorneys or be removed.
At the hearing, Mr. Sheldon appeared as attorney for Mrs. Barton and as guardian ad litem for Shelby Jean. Mrs. Barton testified that she had requested her attorneys to file a claim against the estate for back support money and alimony; that at the time of the hearing she was receiving $73 per month from social security; that she requested her attorneys to petition the court for more money for support of Shelby Jean in addition to the social security money.
On June 27, 1956, the court entered an order reciting that good cause had been shown as to why Mr. Grotsky should not be replaced by Mr. Sheldon's firm and denied the petition for the employment of said firm. On July 5th, judge DAVIS filed a decision stating that the bank was clearly justified in engaging Mr. Grotsky because of his long familiarity with the affairs of deceased; that Mr. Grotsky had been consulted by Shelby Jean and the Fennels immediately after the death of Mr. Bobo; that Mr. Grotsky had already entered into negotiations concerning the wrongful death of deceased; and that "It would seem only fair that he continue to represent the minor and the estate, regardless of the feelings of Mrs. Barton, the divorced wife of Stout Bobo, deceased."
On January 9, 1956, Guardian ad litem Kennedy had challenged the validity of the order of October 6, 1955, because of lack of notice to him. The court upheld the order, and no appeal was taken from its order so holding. On August 22d, upon petition by Mr. Kennedy, the court ordered Mr. Sheldon to show cause why his appointment as guardian ad litem should not be revoked and Kennedy's reaffirmed. This matter has not been determined.
Mr. Sheldon applied for an extension of the time for appeal from the order of October 6th. Because of the illness of judge DAVIS (which frequently caused his absence during the period since this proceeding began), the matter was heard before an acting county judge. He preferred not to decide the matter and suggested that it be held in status quo.
On August 24, 1956, Shelby Jean, by Mr. Sheldon, guardian ad litem, and her mother and natural guardian, appealed from the orders of October 6, 1955, and June 27, 1956. Respondent's attorney signed an admission of service of a copy of the notice of appeal and of "due service" of appellants' brief. There was no motion to dismiss the appeal except that respondent argues in a portion of its brief that the appeal from the order of October 6th, should be dismissed because it is late.
The first question is whether the appeal from the order of October 6, 1955, must be dismissed. It was late, and although appellants applied for an extension of time, no extension was secured. This court has concluded that when a respondent does not move for dismissal of a late appeal but participates in it, sec. 269.51, Stats., vests jurisdiction here, notwithstanding the tardiness. Guardianship of Barnes, ante, p. 356, 82 N.W.2d 211. Respondent has participated in this appeal without first moving to dismiss.
Appellants argue that the county court should have vacated the proceeding for lack of jurisdiction. They assert that the petition for administration was fatally defective because not made by the widow or heir. The petition did, however, assert the fundamental jurisdictional facts of death and residence. Estate of Sargent, 62 Wis. 130, 135, 22 N.W. 131. Even if made by one who was not entitled to administration, the appointment would be revocable, but the proceeding would not be void. Estate of Eannelli, 274 Wis. 193, 80 N.W.2d 240; Steinberg v. Saltzman, 130 Wis. 419, 426, 110 N.W. 198. In any event, the petition here shows upon its face that it was made by the general guardians of the sole minor heir, and a minor may appear by general guardian of property. Sec. 324.29, Stats.
Appellants also challenge jurisdiction because no notice of the hearing on the petition was mailed to Shelby Jean or her mother. We do not deem that a petitioner is entitled to notice of a hearing upon her petition and Shelby Jean, by guardian, was the petitioner. Her mother was not an interested person.
Appellants also point out that Guardian ad litem Kennedy did not appear at the hearing on April 19, 1955, and it does not affirmatively appear that he had notice. This lack of notice did not render the entire proceeding void, whatever effect it may have had upon the validity of the choice of administrators who were appointed. Those administrators have resigned and a successor has been appointed.
The county court correctly declined to vacate the proceeding, and the order of October 6th should be affirmed.
Appellants assert that the bank must employ the attorneys designated by Mrs. Barton. Sec. 310.25, Stats., applies whenever a firm or corporation is named administrator. It permits the beneficiary who is nearest of kin to name the attorney who shall represent the estate in all proceedings "unless good cause be shown before the court why this should not be done." It provides that where the next of kin is an infant, the natural guardian shall act in behalf of the infant.
We conclude that the record supports the recital in the order of June 27, 1956, that "good cause" had been shown. Mr. Grotsky had been attorney for deceased. He had been attorney for the Fennels during the five months they were administrators and for the bank ever since. Mrs. Barton wanted to assert a claim against the estate and to obtain an allowance from the guardianship for support of Shelby Jean, notwithstanding the allowance received from social security. She had requested her attorneys to file a claim and seek such allowance. Her attorneys were the same she asked the bank to employ. There appears to be a conflict of interest between Mrs. Barton and the estate and Shelby Jean and it appears that the attorneys she selected now owe a duty to her which might well conflict with the duty they would owe the administrator. Judge DAVIS' decision suggests that it appeared that the change of attorneys was being requested because of the "feelings of the divorced wife."
There has been no motion to dismiss this appeal nor any challenge here of Mr. Sheldon's authority to act on the ground that he was appointed guardian ad litem in August, 1955, without notice to a guardian ad litem previously appointed. Such challenge has been made in the county court, but not disposed of. For the purpose of this appeal we have treated Mr. Sheldon as guardian ad litem, but make no determination which would foreclose further consideration of his status by the county court.
By the Court. — Orders affirmed.