ESTATE OF BAIR, 272 Wis. 14 (1956)

74 N.W.2d 639

ESTATE OF BAIR: WEBSTER, Appellant, vs. WIMMER, Executor, Respondent.

Supreme Court of Wisconsin.January 9, 1956 —
February 7, 1956.

APPEAL from a judgment of the county court of Grant county: SIDNEY J. HANSON, County Judge of Richland county, presiding. Affirmed.

On February 22, 1955, the court below, having before it the final account of the executor, heard the objections raised thereto, including the objection to the allowance of attorney’s fees for Norman Kvalheim, who acted in the matter as attorney for the executor in the probate of the estate. The judge, in his decision, said:

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“The court has given this matter considerable thought and has concluded, from the testimony offered as to the nature and extent of the services, and from his own permissible knowledge in natures of this kind, that the attorney, Norman Kvalheim, is entitled to a fee of seven hundred fifty dollars ($750), and the court allows this sum as a proper charge in this estate.”

There were other objections, such as, failing to include “fees of Brunckhorst Brunckhorst for probating up to the time of the appointment of the executor.” Those fees were paid in full by Robert M. Bair, who inherited a share of the estate and is not here concerned.

Prior to September 28, 1954, GEORGE F. FRANTZ, county judge of Grant county, suffered a severe heart attack and on that date signed and filed an order pursuant to the provisions of sec. 253.11, Stats., requesting J. L. COLLINS, county judge of Lafayette county, to act as county judge of Grant county until the entry and filing of an order terminating his right to so act. Judge COLLINS continued to act as county judge of Grant county until February 27, 1955. However, when this matter was set for hearing on December 14, 1954, due notice of hearing having been published and served, an affidavit of prejudice against Judge COLLINS, signed by appellant, was filed. Judge COLLINS prepared an order calling in another judge. Counsel then stipulated that the matter be heard by SIDNEY J. HANSON, county judge of Richland county. He assumed jurisdiction, heard the matter on December 22, 1954, and took the matter of the amount and allowance of attorney’s fees under advisement. He rendered a written decision dated February 22, 1955, and then granted final judgment March 4, 1955.

The judgment just referred to is a valid judgment and the one from which the appeal is taken.

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For the appellant there were briefs by Brunckhorst Brunckhorst of Platteville, and oral argument by L. A. Brunckhorst.

For the respondent there was a brief and oral argument b Norman Kvalheim of Cuba City, attorney, and Harry E. Carthew of Lancaster of counsel.

FAIRCHILD, C. J.

The judgment rendered by the court below must be affirmed. The evidence sustains the findings, and we find no grounds on which to base the complaints presented by appellant. There are efforts on appellant’s part, disclosed in the record, showing proceedings calculated to delay the final settlement of the estate and apparently to furnish excuses for this appeal, but we are constrained to regard this as a frivolous appeal, prompted by motives not usually found moving attorneys where seriousness and good faith on the part of the appellant prevail. The circumstances strongly speak of pique and irritation creating a disposition to annoy the executor in the administration of the affairs of the estate because the executor used his authority properly in selecting an attorney to advise him in the administration of the affairs instead of permitting one of the heirs to control the matter.

The rulings of the county court in this matter were in favor of the respondent on all important and material details, and from the judgment entered accordingly this appeal has been brought to this court. The matter was heard, and the record and the testimony then presented before Judge HANSON required the findings made and the judgment rendered.

By the Court. — Judgment appealed from is affirmed, with double costs under sec. 251.23 (3), Stats.

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