Schnorenberg v. Schnorenberg , 150 Wis. 537 ( 1912 )

Timlin, J.

Mathias Schnorenberg on January 2, 1911, died testate. By his will his widow, the respondent, was given a life estate in certain personal .property, which after her death was bequeathed to his four sons share and share alike. He therein appointed the respondent executrix without bond and two of his sons trustees to take charge of the estate after the death of the widow and convert the same, except the residence property, into money and divide the money according to said will. Petition was made for the probate of the will and the appointment of respondent as executrix. Three of the sons filed objections to such appointment on the ground that she was not competent to act in that capacity or to discharge the duties of that position. The county judge on February 28, 1911, found the respondent legally competent and entitled to letters testamentary, but required her to file a bond with sureties in the sum of $50,000. The sons, intending to appeal from such order to the circuit' court, at once asked for a stay of proceedings on the part of the executrix for thirty days. Following a memorandum in the minutes of the court stating the contents of the order appears the following: “Stay of proceedings granted for thirty days. Bond in case of appeal fixed at $250.” Objectors having appealed from said order, on April 3, 1911, they filed in the county court a request for the appointment' of an administrator with the will annexed, representing that the respondent had not complied with the order of February 28, 1911, and filed her bond. April 6, 1911, the county court, without notice or hearing, overruled this request and ordered that letters testamentary issue to respondent and approved her bond and issued letters testamentary. From this order appellants appealed to the circuit court. The last named court on June 24, 1911, remanded this appeal to the county court with directions to that court to make and enter an order in writing stating definitely the order that was actually made by him on February 28, 1911, relating to the stay of proceedings, etc. Pursuant to the last named order the matter was again brought on for hearing before the county judge upon affidavits, from which it appeared that the request' for stay of proceedings originally made was to stay proceedings on the part of the executrix and that the object of making such request was to preserve the status quo with reference to the custody and possession of the personal estate, which was in the hands of a special administrator pending the proposed appeal. Upon these affidavits and after hearing counsel the county judge made a more definite order stating that the order of February 28, 1911, directed by the court, was an order staying all proceedings for thirty days from said date. This evidently was understood as staying the proceedings of qualifying by giving bond, etc. Tbis was returned to tbe circuit court on appeal in due form and thereupon that court made tbe 'order appealed from affirming the order of tbe county court of April 6, 1911, appointing tbe respondent executrix and accepting and approving her bond. Tbe first appeal from tbe county court to tbe circuit court from tbe order of Eebruary 28, 1911, is still pending and undetermined. Ho point is made against tbe regularity of tbis remand, action below, and new return.

Erom tbis it appears that tbe only question raised upon tbe appeal before tbis court is whether tbe county court has power, after requiring an executrix appointed by tbe will without bond to give bonds and after stay of proceedings on such order, to interpret such stay as extending the time within which she must give bond, or its expiration as fixing tbe commencement of tbe period within which she must give bond, or whether be has power to accept and approve such bond given by her more than twenty-days after the date of tbe order requiring tbe bond. Secs. 3794, 3795, and 3796, Stats. (1898), are relied upon by tbe appellants. Tbe first requires every executor to give bond; tbe second, exempts from tbis requirement executors named in a will when tbe testator has ordered or requested in bis will that no bond be required. But in tbis case, notwithstanding sxrch order or request, tbe county court may order a bond. See. 3796 provides that if tbe person named as executor in any will “shall, . . . for tbe space of twenty days after tbe probate of the same, neglect to give bond as required by law, tbe county court may grant letters testamentary to tbe other executors named in tbe will, if any, who are capable and will accept tbe trust and give bond. If all named as executors neglect to qualify tbe court may commit administration of tbe estate, with tbe will annexed, as provided in sections 3807 and 3808. ISTo person named as executor in any will, who neglects to qualify for twenty days after probate thereof, shall intermeddle or act as such.”

It is said that these statutes are mandatory, particularly the last clause of sec. 3196, supra. This clause merely forbids the executor before qualification to take upon himself the duties of executor or to interfere with the property of the estate. Taken all together we find no language in the statutes expressly or by reasonable implication forbidding the county judge to do what was done in this case. His action was well within the powers of any judicial officer at common law. Indeed, many executive and administrative officers have power to' permit acts in obedience to their orders to be done after 'the time specified. Even statutes fixing time within which an act should be done are often construed as directory and the act done afterwards valid. We think the sections of statute cited do not touch this case, and the act of approving her bond and issuing letters testamentary entirely within his power, although more than twenty days had elapsed since he made the first' order appointing her and requiring the bond. It follows that the order of the circuit court must be affirmed.

By the Oourt. — Order affirmed.