#### Will of McNaughton: Frame, Proponent and executor, Respondent, vs. Plumb and others, by guardian *ad*litem, Appellants.

*January 8*

March *10, 1908.*

*Appealable orders: Probate proceedings: Party aggrieved: Anticipated expenses: Guardian*ad litem.

1. An application, made during the pendency of a contest of the probate of a will, by the guardian *ad litem*of the contestants, for an allowance from the estate to procure attendance of wit*25nesses, being a separate and independent proceeding not necessarily related to the determination of tbe contest, an order entered thereon is final within the meaning of subd. 2, sec. 3069, Stats. (1898), authorizing an appeal from a final order affecting a substantial right made in special proceedings.

*Z.*Where the contestants of a will obtained an order directing the proponent and special administrator to pay to their guardian *ad litem*funds of the estate to procure attendance of witnesses, the executor might have made himself a party to the proceedings by appearing and moving toi vacate the order, but, not having been made a party, he may not assign error on appeal, although he is special administrator, proponent, and executor.

3. During the pendency of a contest of the probate of a will, where the same person was proponent, executor, and special administrator, application was made by the guardian *ad litem*of the contestants for an allowance from the estate to procure attendance of witnesses. An order to show cause why the special administrator and proponent should not be ordered to pay the expenses was directed to the proponent only and certain respondents. The special administrator and proponent was ordered to pay the allowance. *Held,*the special administrator not being a party to the proceedings, the proponent was the only person upon whom the order could operate and who was entitled to appeal.

4. In the.absence of specific authority a court will not direct the payment from the estate of anticipated expenses of the contestants of the probate of a will.

5. An award of costs, authorized by sec. 4041, Stats. (1898), to be granted by county courts in contested matters, can only be made by judgment.

6. Sec. 2, ch. 267, Laws of 1907, amending sec. 4041a, Stats. (1898), does not authorize an allowance to a guardian *ad litem*of the contestants of a will from funds of the estate for anticipated expenses to procure attendance of witnesses.

'Appeal from an order of the circuit court for Waukesha county: MaRtiu L. Ltjeck, Circuit Judge.

*Reversed.*

This is an appeal from an order dated May 11, 1907, directing the payment of the sum of $300 from the funds of the estate of the deceased to D. S. Tullar, as guardian *ad litem,*for the contestants, who are minors, to procure the attendance of witnesses upon the trial of the contest of the will. From the order *Andrew J,*Frame, as executor and proponent, takes *26this appeal. The will was presented for probate in the county court of Waukesha county and objections thereto-were filed on behalf of the minor heirs. The will was admitted to probate and *A. J. Frame*was appointed executor. Before he had taken possession of the estate and securities-an appeal was perfected from the county court to the circuit court. Thereupon the county court'appointed *A. J. Frame-*as special administrator to hold the funds pending the litigation. D. S. Tullar, as guardian *ad litem*for the minor heirs, petitioned the circuit court for an order directing *A. J. Frame,*as special administrator, to pay the sum of $300 with which to procure the attendance of witnesses. The parties to-the proceeding in the circuit court were *Andrew J. Frame,.*proponent, and the board of trustees of Oarroll College, residuary legatees under the will, and E. S. Tullar, as guardian *ad litem*for the two minor heirs. Erame was not mentioned in-the title as either executor or special administrator. The-petitio-n by Mr. Tullar does not state that *Frame*had been appointed executor, but it does state that the moneys in said' estate of the deceased are in the possession and under the control of *Andrew J. Frame,*who has been appointed and' who is now acting as special administrator of said property. Upon this petition the circuit court issued an order returnable-on the 11th day of May, .1901, requiring the above-named proponent and the other respondents in that court [the board' of trustees of Carroll College] to show cause before the court on the 11th day of May, 1907, *why A. J. Frame, special administrator*of the estate of said Elizabeth McNaughton *and the proponent*of her alleged will, should not be ordered to pay the guardian *ad litem*the sum of $300 with which to-procure the necessary witnesses on the part of the minor contestants for use upon the trial of said action. This order to show cause was served upon Erame & Blackstone, attorneys for said respondents. In response to the order to- show cause Blackstone filed an affidavit stating that he was one of the at*27torneys for tire proponent of tbe will and wbat be bad discovered with respect to the property of tbe minor contestants; and further stating that Erame, *as. .proponent of the above-mentioned will;*bad no property of tbe deceased in bis bands or under bis control, and that *Andrew J. Frame*bad been appointed and was acting as special administrator of said estate under tbe direction and control of the county court. Upon tbe bearing of tbe order to sbow cause on tbe 11th day of May, 1907, tbe circuit court entered an order directing *said Andrew J. Frame, proponent of said will and special administrator*of tbe estate of Elizabeth McNaughton, deceased, to pay over to D. S. Tullar, guardian *ad litem fox*the minor contestants, tbe sum of $300 of tbe moneys in bis bands belonging to said estate for tbe use of said guardian *ad litem*in procuring the attendance of witnesses on behalf of said minor wards for the trial. Erom this order an appeal was taken to this court by A. J". *Frame, as executor and proponent*of said alleged will. *A. J. Frame, as special administrator,*was not a party to tbe appeal from tbe county court to the circuit court, and was not a party to tbe proceeding in which the order was made and did not appeal* therein. On June 13, 1907, *Andrew* J. Frame,*as proponent and executor of said will, served notice of appeal to this court and gave a bond to stay proceedings. Tbe circuit court refused to stay said proceeding, and upon application made to this court tbe late chief justice entered an order for that purpose. Tbe respondents have moved to dismiss the appeal upon two grounds: (1) Tbe order appealed from is an intermediate order and is not reviewable on appeal until after judgment. (2) *Andrew J. Frame as proponent and executor*of tbe alleged will is not a proper party appellant.

Eor tbe appellants there was a brief by *Frame & Blackstone,*attorneys, and *Charles Quarles,*counsel, and oral argument by A. *J. Frame.*

*28Ror tbe respondents there was a brief by *D. 8. Tulla/r,*guardian *ad litem,*etc., and *E. Merton,*of counsel, and oral argument by *Mr. Tullar.*

The following opinion was filed January 28, 1908:

Bashrord, J.

The first question raised upon the motion to dismiss the appeal relates to the nature of the proceeding in which the order appealed from was entered. The contention upon the part of the respondents is that the order does not “determine the action and prevent a judgment from which an appeal might be taken,” under subd. 1, sec. 3069, Stats. (1898) ; neither is it a “final order affecting a substantial right made in special proceedings,” under the second subdivision of that section. It is clear that the order, does not come within the first subdivision of sec. 3069, and if appeal-able it must be upon the ground that the application for the payment of the suit money for the minor contestants out of the fund in litigation is a special proceeding. The application for this allowance did not necessarily relate to the determination of the contest of the probate of the will, but was a separate and independent proceeding to which the special administrator, if he was to be bound thereby, should have been made a party. The order entered upon this application made a final disposition of the proceeding, and it bears the same relation thereto that the final judgment does to an action. It was therefore a final order entered in a special pro-needing within the rule of *Kingston v.*Kingston, 124 Wis. 263, 102 N. W. 577.

The second ground urged for dismissing the appeal is that *A. J. Frame*as proponent and executor of the will is not a party aggrieved. The executor might have made himself a party to the proceeding by appearing and moving to vacate tbe order after it was entered. *In re Butler’s*Will, 110 Wis. 70, 85 N. W. 678. But, not having been made a party, he has no standing here to assign error. *Bank of Comm. v. Elliott,*109 Wis. 648. 85 N. W. 417.

*29The situation is different with respect to the proponent of the will upon this record. Some confusion has perhaps arisen in the proceeding from the fact that the same person is the proponent'of the will, the executor, and the special administrator. The order to show cause is directed to the proponent and respondents, the respondents being the proponent and the board of trustees of Carroll College. It requires them to show cause why *A. J. Frame,*special administrator of the estate of Elizabeth McNaughton and the proponent of her alleged will, should not be ordered to pay to the guardian *ad litem*$300 with which to procure the attendance of witnesses at the trial. The order finally issued recites that the preliminary order having been brought on for hearing, “requiring said *Andrew J. Frame*as special, administrator of the estate . . . and the proponent of her said alleged will,” etc-., and directs “that said *Andreiu J. Frame,*proponent of said will and special administrator of the estate of said Elizabeth McNaughton, deceased, forthwith pay over to D. S. Tullar, guardian *ad litem,*. . . the sum -of $300 of the moneys in his hands belonging to the estate,” etc. As already stated, *Andreiu J. Frame*as special administrator was not a party to the proceeding, while *And/reiv J. Frame*as proponent of the will was a party, and as such is'required to malee payment of this money. He is the only party upon whom the order can properly operate, and was therefore the adverse party on the record. “He was to all intents and purposes the defendant in the proceedings, regardless of the name by which such a party is commonly known.” *State ex rel. Durner v. Huegin,*110 Wis. 189, 85 N. W. 1046. As the proponent was required to make payment of the money, he was certainly a party aggrieved by the-order. The motion to dismiss the appeal must therefore be denied.

This appeal presents for the first time the question as to the power of the court under the statutes of this state to direct the payment of anticipated expenses of the trial to the adverse party out of the funds of the estate in a contest of the pro*30bate of a will. If such power exists it may be exercised not only by the court in which the contest arises, but also by any court to which it may be carried by appeal, and be exercised, too, upon a preliminary order and without investigation of the merits of the controversy. If any such power has been granted it should be exercised with great caution to prevent the estates of deceased persons from being squandered in fruitless litigation. Eor the court to allow or apportion costs in such case it is necessary to point 1» the specific provision of the statute giving authority. *In re Donges’s Estate,*103 Wis. 497, 513, 79 N. W. 786. We have been referred to no statute expressly conferring such power and we have been unable to find authority to justify the entry of this order. Sec. 4041, Stats. (1898), authorizes the county court to award costs in contested matters, to be paid out of the estate which is the subject of controversy as justice and equity may require, but such award can only be made by judgment. Sec. 404-la provides that, when a judgment is made upon a contested application for probate of a will, costs payable out of the estate should not be awarded to an unsuccessful contestant of the will, unless he is a special guardian for an infant or is named as an executor in a paper propounded by him in good faith as the last will of the deceased. This clearly contemplates that the allowance shall only be made at the time the judgment is directed or entered. This statute has received strict construction by the court, and in *Stephenson v. Norris,*128 Wis. 242, 107 N. W. 343, it was held that an allowance for the services of the guardian *ad litem*should be made payable only out of the infant’s property under the control of the court, and not out of the body of the estate subject to litigation. Eor the purpose, doubtless, of modifying the rule which had been stated in former decisions, and which was re-affirmed in the case last cited, sec. 4041a was amended by ch. 267, p. 596, Laws of 1907. Subd. 2 of sec. 4041a thus enacted provides that a guardian *ad litem,*for *31an infant who is a necessary party to a proceeding to probate or to construe a will or to settle an estate may be allowed compensation for bis services and for bis necessary expenditures in tbe litigation, to be fixed by tbe court in wbicb tbe litigation is bad, to be paid out of tbe body of tbe estate in controversy if tbe infant bas no available property out of wbicb sucb payment can be directed. Sucb allowance is to be made in tbe discretion of tbe court, as provided in tbe first subdivision of tbat section, and by judgment, as provided in sec. 4041. Tbis amendment cannot be construed as authorizing an allowance before tbe services bave been rendered or tbe expenditures have been made, as tbe court must determine tbe value of sucb services and the necessity for sucb expenditures. Tbe order was therefore improperly granted.

*By the Court.*— A motion to dismiss tbe appeal is denied, and tbe order appealed from is reversed.

A motion by tbe respondents to modify tbe mandate was ■denied March 10, 1908.