Opinion
March 3, 1954 —
April 6, 1954.
APPEAL from an order of the county court of Racine county: W. W. DAVIS, Judge, Presiding. Affirmed.
For the appellant there was a brief by Benson, Butchart, Haley Benson of Racine, and oral argument by Donald A. Butchart.
For the respondent there was a brief by Heft, Brown, Stewart Coates, and for the residuary legatee by Beck DuRocher, and oral argument by Carroll R. Heft, Thorwald P. Beck, and Kenneth L. Greenquist, all of Racine.
This is an appeal by the First National Bank Trust Company of Racine, hereinafter referred to as the "bank," special administrator of the estate of Laura C. Williams, deceased, from an order entered August 26, 1953, which requires the bank as such special administrator to turn over to Vartak Gulbankian, executrix of the will of said deceased, the goods, chattels, moneys, and effects in its hands as such special administrator.
On January 7, 1953, Laura C. Williams executed her last will and testament by the terms of which she nominated Vartak Gulbankian executrix and added a provision as follows:
"I direct that my executrix retain [naming an attorney] to probate my estate."
(We have omitted the name of the attorney for the reason that as will hereinafter appear some rather serious charges are made against him and he has not had an opportunity to explain or clear himself of those charges. He will be referred to throughout this opinion as the "attorney.") On February 2d the bank was appointed special guardian of her estate and on March 4th was appointed general guardian. She died on March 15th, and on March 18th petition for probate of the will was made to the county court of Racine county by the named executrix. On the same day an order for hearing on such petition was entered by Judge SIMPSON, county judge, designating April 28th as the date of hearing. On March 20th a petition was filed by Jennie Fink, a cousin of the deceased, for the appointment of a special administrator, and on March 20th the bank was appointed.
On April 27th the bank as such special administrator filed with the court a petition in which it is alleged that the attorney named in the will had had a number of transactions with and for the deceased during her lifetime which caused the bank to suspect that he had taken undue advantage of her by reason of his relationship as her attorney. For instance, it is alleged that he had bought from her a parcel of real estate for an inadequate consideration, and that he had advised her to buy a number of mortgages which if they should have to be liquidated would bring to the estate amounts less than the balance due on such mortgages. It is also alleged in the petition that for reasons therein stated Vartak Gulbankian is not legally competent to act as the personal representative of the estate and that it is feared that if the attorney should be engaged the executrix would be acting only nominally. The petition prays that before the propounded will is admitted to probate the court direct that an inquiry be made with regard to the information contained therein and that if the instrument is admitted to probate Miss Gulbankian be not appointed executrix and that the attorney be not permitted to act for her.
On April 27th an order was signed by Judge SIMPSON requiring that Miss Gulbankian and the attorney show cause on April 30th why an order should not be entered authorizing and directing the bank to make full inquiry into the matters set forth in the petition and that all proceedings for the admission to probate of the will be stayed pending such hearing. Copies of the order were served upon both Miss Gulbankian and the attorney.
On April 29th the attorney filed an affidavit of prejudice against Judge SIMPSON. Judge SIMPSON complied fully with the provisions of sec. 253.07, Stats., and pursuant to the provisions of the act creating the municipal court of Racine county, entered an order that Hon. FLOYD J. MONK, judge of the municipal court of Racine county, hear the matter. No attack is made upon Judge SIMPSON'S order calling in Judge MONK.
On May 13th a petition was filed by the named executrix for an order requiring the bank, the residuary legatee named in the will, and the attorney to show cause why the order of April 27th should not be quashed, the will should not be admitted to probate, and why she should not be appointed executrix without further delay. An order for hearing on the foregoing petition was signed by Hon. W. W. DAVIS, county judge of Kenosha county, on May 13th.
Copies of the order were served upon the attorneys for the bank and the attorneys for the residuary legatee. It provides that hearing upon the petition be had on May 16th.
On May 16th both judges, MONK and DAVIS, were present in court as were the attorneys for the bank, the attorneys for the executrix, the attorneys for the residuary legatee, and one of the specific legatees, and the attorney. Judge MONK then declared that after having further examined the record and circumstances he considered that he should not sit in the matter and disqualified himself to act. He stated further that he had requested Judge DAVIS to sit in his place and added "there being no objection Hon. W. W. DAVIS, acting county judge, presided in the above-entitled matter." On the same day the attorney filed a declination to act further as attorney for the executrix. On the same day without objection the will was admitted to probate by Judge DAVIS.
On June 12th an order was signed by Judge DAVIS reciting that there was then for consideration by the court the order to show cause which had been obtained upon the petition of the bank and the order to show cause which had been obtained upon the petition of the executrix, both of which have been referred to above. It recites the appearance of the bank by its trust officer and its attorneys, the executrix and her attorneys, the residuary legatee and one of the specific legatees, by their attorneys, the attorney personally, and by his attorneys. The court finds in the recitals of the order that the executrix named is competent to act and as conclusions of law decrees that the will should be admitted to probate, the bank's petition be quashed, and letters be issued to Miss Gulbankian. On the same day notice of entry of this order was served upon the bank's attorneys. Letters were issued on June 12th.
On June 18th the bank filed its account and petitioned for its allowance and for its discharge as special administrator. In the same petition the bank also asks for an order directing it to deliver the property of the decedent in its possession to the person or party entitled to receive it. On the same day an order was signed by Judge SIMPSON setting July 1st as the date of hearing upon the bank's petition. Notice of such hearing was served upon the attorneys for the executrix and the attorneys for the residuary and specific legatees.
On July 8th objection to the allowance of the bank's account was filed by the attorneys for the residuary and specific legatees, and by the executrix.
On July 15th petition was made by the executrix for an order directing the bank to deliver to her the assets of the estate and for hearing upon the account of the bank and the objections theretofore filed thereto. On July 16th Judge DAVIS signed an order designating August 5th as the date for hearing the petition of the executrix and stating that there would be heard and determined on that day the request of the executrix for an order compelling the bank to deliver the effects of the deceased to her. The order also states that a hearing on the account of the bank should be had as soon as reasonably convenient. Copies of this order were served upon the bank and its attorneys.
On August 26th Judge DAVIS entered an order requiring the bank to deliver to the executrix the effects in its hands as such special administrator. It ordered further that the bank's account as such special administrator should be heard before Hon. W. W. DAVIS at such future time as shall be ordered. The order recites the appearance of all of the attorneys who had theretofore appeared but recites also that the bank had appeared specially and objected to the jurisdiction, Hon. W. W. DAVIS, presiding.
The bank appeals from this order.
Sec. 253.11, Stats., provides:
"Any county judge may act as county judge of any county upon the request of the county judge thereof, and while so acting he shall have the same powers as if elected for the county in which he is acting. . . ."
That a county judge has authority to act in any county of the state is there declared. It must be conceded that judge DAVIS had not been requested by Judge SIMPSON to act in the matter of the estate of Laura C. Williams. The omission was no more than an irregularity, however, and it was competent for the bank to waive it by failing to make timely objection. Estate of Schaeffner, 45 Wis. 614.
On May 16th both Judge MONK and Judge DAVIS appeared. In a reporter's transcript of some of the proceedings then had appears the recital by Judge MONK, among others, that the attorneys for the bank were present and appeared for it. Judge MONK then announced that he considered himself disqualified to act and that he had requested Judge DAVIS to act. He added: "There being no objections, Hon. W. W. DAVIS, acting county judge, presided in the above-entitled matter." The bank contends that the reporter's transcript is not a part of the record and that we may not consider it. Assuming that we may not, the formal order of Judge DAVIS entered on that day recites the general appearance of the bank by its trust officer and its attorneys and fails to disclose that the bank made any objection or raised the question as to the right of Judge DAVIS to act. Without objection made by anyone interested in the estate upon the ground that he was without authority to act, Judge DAVIS on that day admitted the will to probate, appointed Miss Gulbankian executrix, and ordered the petition filed by the bank on April 27th dismissed upon its merits.
The bank's appearance on May 16th was a general appearance and waived all objection to the power of Judge DAVIS to act. Case v. Hoffman, 100 Wis. 314, 356, 72 N.W. 390, 74 N.W. 220, 75 N.W. 945. He was then acting in the matter with the "same powers as if elected for" Racine county as is authorized by the statute.
The question then arises: How long after a county judge of another county has been called in to act in the administration of an estate, and does act with authority, may he continue in such capacity? Does his authority cease when the interest of one who has filed an affidavit of prejudice has had a determination of the matter which affects him or has withdrawn from the proceeding as is the case here? We are not required to answer the questions, for certainly it may not be said that the mere presentation by one of the parties of a petition to the judge of the county operates to disqualify the judge who has been called in. As we have pointed out, the bank had recognized the authority of Judge DAVIS to act in the proceedings. Can it, without challenge and by its own act, based upon nothing except its own determination, oust him? We think not. It does not lie within its powers effectively to determine without any action on the part of the then acting judge that he is disqualified to act further in a matter concerned with the estate.
The bank's petition for allowance of its final account seems to have been presented to Judge SIMPSON and the order for hearing thereon was signed by him. The matter has not been disposed of. Judge SIMPSON'S order does not operate to disqualify judge DAVIS to act further. Whether or not Judge DAVIS can or should continue to act is for his determination. Having been called into the matter he has the same powers as if he had been elected for Racine county. In the very nature of things he is the only person who is qualified and should be considered to have authority to determine whether he may or should continue to act. If this were not true, one can easily imagine what confusion might result.
What we have said should not be construed as implying that a county judge once called in may under no circumstances be later disqualified. What is meant is that if he is to be removed from the matter it must be accomplished by the act of the acting judge, not by a mere request of a party to the local judge that he take over.
By the Court. — Order affirmed.