ESTATE of REHFUSS, 65 Wis.2d 409 (1974)

222 N.W.2d 617

ESTATE OF REHFUSS: REHFUSS, Appellant, v. LA CROSSE TRUST COMPANY, personal representative of the deceased, and others, Respondents.

Supreme Court of Wisconsin.
No. 223.Submitted under sec. (Rule) 251.54 October 3, 1974. —
Decided October 29, 1974.

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APPEAL from two orders of the county court of La Crosse county: EUGENE A. TOEPEL, Judge. The appeal from the order of September 5, 1972, is dismissed; the order of February 15, 1973, is affirmed.

The appeal in this case is from an order dated September 5, 1972, and a judgment dated February 15, 1973, which had the effect of denying a further extension of time for the appellant widow to elect against the will of her deceased husband. The judgment also denied an extension of time for appeal from the order of September 5th.

Louis I. Rehfuss executed a will on September 18, 1951, under which his wife, Josephine, was the beneficiary of the income of his estate for her life and the La Crosse Community Trust was the beneficiary of the principal. Rehfuss died on May 5, 1971. A petition for probate of his will was filed the same day.

On May 4, 1972, one day prior to the expiration of the period fixed by sec. 861.11 (3), Stats., an order was entered extending the time for Josephine to elect against the will until September 5, 1972.

On September 5th, Attorney Daniel T. Flaherty called Judge TOEPEL on the telephone and asked for a further extension of time because Josephine had just come in to see him. Up until this time she had been represented by Attorney Ernest O. Hanson. Judge TOEPEL denied the request on the ground that he had no power to extend the time further and filed a written order to that effect. An election by Josephine against the will was filed on November 1, 1972. On November 2d a motion was made to extend the time for appeal from the order of September 5th denying a further extension of time in which to

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file an election. It was granted by an ex parte order of the same day extending the time to November 30, 1972.

On November 16, 1972, a formal petition was filed for a further extension of time to elect against the will, for recognition of the election which had been filed, and for an extension of time to appeal from the order of September 5th. The petition came on for hearing on December 15, 1972, and at that time the parties were given until January 15, 1973, to file briefs. Judge TOEPEL wrote a memorandum decision which was filed February 12, 1973, in which he denied a request for a further extension of time to elect against the will on the ground that he was without power to do so and denied a further extension of time to appeal the order of September 5, 1972, on the ground the widow was not without fault in neglecting to take an appeal. The judgment implementing this decision was entered on February 15, 1973.

After the record was filed in this court, the attorney general and personal representative made motions to dismiss the appeal. The motions were denied with leave to reassert them and the parties were directed to consider in their briefs on the merits whether the order of September 5, 1972, was appealable, and whether the document dated February 15, 1973, was a judgment or an order.

The cause was submitted for the appellant on the briefs of Johns, Flaherty, Harman Gillette, S.C., of La Crosse, and for the respondent La Crosse Trust Company on the brief of George M. Snodgrass and Englehard, Snodgrass Goerdt, all of La Crosse; for the respondent La Crosse Foundation on the brief of Moen, Sheehan Meyer, Ltd., of La Crosse; and for the respondent state of Wisconsin on the brief of Robert W. Warren, attorney general, and James P. Altman, assistant attorney general.

BEILFUSS, J.

The first issue is whether a decree refusing to extend the time for election against the will is an order or a judgment.

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It is necessary to decide this question because if such a decree is a judgment, the order of September 5, 1972, is a judgment, and this court must decide whether the trial court abused its discretion in denying a late appeal under sec. 879.31, Stats. It has been held that matters in probate are special proceedings, subject to the rule that decrees entered therein are orders and not judgment Estate of Stoeber (1967), 36 Wis.2d 448, 153 N.W.2d 599. Notwithstanding this general rule, some probate decrees are judgments. The final judgment allows the accounts of the personal representative and assigns the estate to those entitled to it. Sec. 863.25. The final judgment must construe the will. Estate of Greeneway (1941), 236 Wis. 503, 295 N.W. 761. A decree construing the will before final judgment has been held to be a judgment rather than an order. Estate of Bosse (1944), 246 Wis. 252, 16 N.W.2d 832. If the rule were otherwise the will construction would be an interlocutory order reviewable on appeal from the final judgment. It is necessary to hold that those decrees deciding questions which would otherwise be decided at the time of final judgment are interlocutory judgments; else administration of an estate would be prolonged until an appeal from the final judgment was decided.

Extension of the time to elect against the will is not a question to be decided at the time of final judgment. If it were the election would still be available and the administration of the estate would not be terminated. In Estate of Baumgarten (1961), 12 Wis.2d 212, 221, 107 N.W.2d 169:

“. . . The effect of the bank’s motion was to institute a special proceeding and such order terminated such proceeding Therefore, it is a final order affecting a substantial right in a special proceeding and is appealable under sec. 274.33 (2).”

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The same reasoning applies here. The effect of a petition to extend the time for filing an election against a will is to institute a special proceeding, which is terminated by a final order affecting a substantial right, not a judgment.

Because the decree of September 5th is not a judgment the question remains whether it is an appealable order. If it is, the order of February 15, 1973, to the extent it is only a denial of a motion to review the question decided in the September 5th order, is not appealable. Ver Hagen v. Gibbons (1972), 55 Wis.2d 21, 197 N.W.2d 752. The order of September 5th recites that it is occasioned by two telephone calls from Attorney Flaherty on behalf of Mrs. Josephine Rehfuss requesting the court to extend the time in which the widow could elect whether or not to take under the will.

Appealable orders must be made by the court. Sec. 274.33, Stats. An order made in chambers is not appealable State v. Kuick (1948), 252 Wis. 236, 31 N.W.2d 181. An order refusing to vacate an order made in chambers is appealable if an appeal might have been taken in the first instance. Sec. 274.33 (4).

An order “by the court” is one made by the court in session. Sec. 269.29, Stats. It must be made on notice or appearance by the opposing party. State ex rel. Hall v. Cowie (1951), 259 Wis. 123, 47 N.W.2d 309. An exception to the notice requirement is when a party fails to obey a prior order and the penalty for failure is dismissal Sheldon v. Nick Sons, Inc. (1948), 253 Wis. 162, 33 N.W.2d 260.

Sec. 861.11 (3), Stats., provides that an extension of time to elect against the will may be granted “by the court.” Therefore, the order of September 5th is not only nonappealable because it was made ex parte at chambers after a telephone call to the judge, but is also a nullity because it could only be made on notice by the

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court in session. The fact that the order recites it was made by the court is not determinative if the order shows on its face, as this one does, that it was not. Merriman v. McCormick Harvesting Machine Co. (1893), 86 Wis. 142, 56 N.W. 743. The appeal from the order of September 5th is therefore dismissed.

The final issue is whether the trial court had power to further extend the time to which to elect against the will.

Sec. 861.11 (3), Stats., provides in part as follows:

“TIME FOR FILING. The election must be filed within one year of the filing of the petition for probate of the will, except that the period may be extended by the court during but not after such one-year period, for additional time as the court deems just, in event of . . . special circumstances justifying the delay in filing an election.” (Emphasis supplied.)

It is not necessary in this case to decide whether the trial court may extend the time for filing the election by an order entered after the one-year period has expired when a petition was filed during the one-year period. Here, the one-year period was extended by a timely order. Subsequently another extension was requested, not during the one-year period but after it had passed. The power granted to the trial court by sec. 861.11 (3), Stats., could not be exercised because the one-year period had expired.

By the Court. — The appeal from the order of September 5, 1972, is dismissed. The order of February 15, 1973, is affirmed.

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