#### In re Gertsen's Will: Gertsen, Administratrix, Appellant, vs. Clementson, Guardian *ad litem,*Respondent.

*February 27*

March *20, 1906.*

*Foreign wills: Probate in Wisconsin: Jurisdiction: Procedure: Statutes: Construction: Counsel fees: County courts: Circuit courts.*

1. Under sec. 3790, Stats. 1898 (providing, as to the probate in Wisconsin of wills theretofore admitted to prohate in other states and countries, that if on the hearing it shall appear to the court that the order or decree admitting such will to prohate was made by a court of competent jurisdiction and is still in force, the copy and the probate thereof shall he filed and recorded, and the will shall have the same force and effect as if it had been originally proved and allowed in the same court), it is error to refuse probate of a foreign will where there was no controversy as to the foreign probate having been made by a court of competent jurisdiction, and the exemplified copy of the proceedings in the foreign jurisdiction shows them to be regular in every respect.

2. On application under sec. 3790, Stats. 1898, to probate a foreign will, the mere fact that some essentials of a valid original probate in this state are lacking will not authorize the county court to refuse it probate.

*6033. Under ch. 397,.Laws of 1901 (providing, among other things, that any court of record, in contests arising therein, upon ap-. plication for the probate of any will, in its discretion, may allow to the contestant, if successful in the circuit court, a reasonable attorney’s fee out of said estate for services in such contest in the circuit court), the first court mentioned refers to the one having primary jurisdiction of the probate of wills— the county court — as the one given authority to allow attorney’s fees and direct the payment thereof out of the estate.

Appeal from a judgment of tbe circuit court for Grant county: Geoege ClemeNTSOW, Circuit Judge.

*Reversed.*

Emer Gertsen died testate at ber borne in Cheyenne county, Nebraska, leaving property there and in Grant county, Wisconsin. Sbe left a husband, who was ber sole beneficiary, and two grandchildren, Albert and Charles Edwards, who were interested in ber estate contingent upon tbe validity of tbe will. They were never residents of Nebraska. Proceedings were duly and successfully bad in tbe borne state to admit tbe will to probate, constructive notice only being given to absent interested parties. Tbe minors were not represented by guardian *ad litem*or otherwise. In due time said beneficiary applied for probate of tbe will in Grant county under sec. 3190, Stats. 1898. All proceedings required thereby, essential to tbe jurisdiction of tbe feourt, were bad, in-eluding appointment of a guardian *ad litem*for such minors. On tbe bearing an exemplified copy of the will and tbe record admitting it to probate as aforesaid were produced to tbe court. Tbe application was denied. On appeal to the circuit . court tbe judgment of tbe county court was affirmed, upon tbe sole ground that no guardian *ad litem*was appointed to represent tbe minors in tbe former proceeding. Judgment was entered accordingly, and that $75 be paid tbe contestant’s attorneys out of tbe Emer Gertsen estate.

Tbe cause was submitted for tbe appellant on tbe briefs of *Bushnett, Moses &*Wathins, and for tbe respondent on tbe brief of *George B. Olementson.*

*604Mabshall, J.

Tbe judgment cannot be affirmed without a judicial repeal of sec. 3790, Stats. 1898. That statute is plain; it is constitutional ;• it is mandatory. All its provisions up to the decision of tbe court complained of were fully complied witb. Then, whereas tbe statute says “tbe will shall have the same force and effect as if it bad been originally proved and allowed in tbe same court,” tbe learned court said otherwise, and such is tbe effect of tbe judgment before us.

Tbe mistake was made, it seems, by looking to tbe essentials of a valid original probate of a will in this state, instead of such essentials in Nebraska. Tbe language of tbe statute is not to tbe effect that if it appears that tbe former probate was according to tbe laws of this state tbe will shall be admitted in tbe secondary proceeding witb like effect as if they were primary: to tbe contrary it says:

> “If on tbe bearing it shall appear to the court that tbe order or decree admitting such will to probate was made by a court of competent jurisdiction, . . . tbe will shall have the same force and effect as if it bad been originally proved and allowed in tbe same court.”

There is no controversy but what tbe foreign probate was made by a court of competent jurisdiction. Tbe exemplified copy of tbe proceedings in that regard is regular in every respect and that is not disputed.

We are unable to see any warrant for tbe award of $75 to tbe contestant for attorney’s fees, and tbe direction for its payment out of tbe estate of Emer Gertsen. Respondent’s counsel points to cb. 397, Laws of 1901, to sustain that part of tbe judgment. It seems tbe learned court gathered an erroneous idea therefrom. It says:

> “Any court of record, in contests arising therein, upon application for tbe probate of any will, in its discretion, may . . . allow to tbe contestant if successful in tbe circuit court a reasonable attorney’s fee out of said estate for services in such contest in said circuit court.”

*605The first court mentioned refers unmistakably to the one having primary jurisdiction of the probate of wills. It is the court wherein the contest arises, the one of first instance — the county court — that is given authority to allow the attorney’s fees and direct the payment thereof out of the estate.

*By the Court.*— The judgment appealed from is reversed, and the cause remanded with directions to reverse the judgment or order of the county court, and to render judgment admitting the will to probate, with costs in favor of the proponent, and to remand the matter to the county court with directions to proceed therein according to law.