Butler v. Templeton

Wisconsin Supreme Court
Butler v. Templeton, 115 Wis. 382 (Wis. 1902)
91 N.W. 969; 1902 Wisc. LEXIS 227
Winslow

Butler v. Templeton

Opinion of the Court

Winslow, J.

There is but a single question of law in this case, and that is easily stated: A will was duly admitted to probate, and the executor qualified. On the same day an order was made limiting the time for the presentation of claims against the estate, and three days afterwards the publication of the notice of such order was begun. A few days after the first publication an appeal to the circuit court was taken from the order admitting the will to probate, and a trial was had, resulting in reversal of the order, followed by an appeal to this court, upon which the judgment of the circuit court was reversed and the cause remanded with directions to affirm the original order of the county court. The publication of the' notice to creditors proceeded without interruption, notwithstanding the appeal. The claimant did not present her claim within the time limited by the order, but presented the same about six months after the expiration of that time, but before the record was returned to the county court, and claims that the appeal from the order of probate suspended the operation of the order limiting the time for the presentation of claims while such appeal was pending. Our statutes provide that the county court shall by order fix the time within which creditors shall present their claims for examination and allow-*385anee, and give notice thereof by publication for fonr consecutive weeks (sec. 3840, Stats. 1898) ; also that every claim not presented within the time limited shall be forever barred (sec. 3844). It is also provided by sec. 4036 of the same statute that, after an appeal is claimed and notice given, “all further proceedings in pursuance of the act appealed from shall cease until the appeal shall be determined.” It is admitted that, unless this clause operates to stay the running of the limitation, it is not stayed. We think it is clear that it does not do so. Neither the publication of the notice to creditors, nor the running of the limitation, can properly be called a proceeding “in pursuance of” the order admitting the will to probate. The order limiting the time for creditors to present claims may perhaps be so called, although this is not decided; but this order had been made at the time the appeal was taken, and hence it could not be affected thereby.

By the Court. — Judgment reversed, and action remanded with directions to affirm the judgment of the county court.

Reference

Status
Published