
    Perry, Executor, Appellant, vs. Scaife and others, Respondents.
    
      November 18
    
    December 12, 1905.
    
    
      •County courts: Extension of time to appeal: Probate of will: “Aggrieved” persons: Petition: Construction: “Near relatives:" Indefiniteness.
    
    
      1. A petition for leave to appeal, after tlie statutory time, from tie decision admitting a will to prolate, stating that the petitioners are “near relatives and heirs at law” of the deceased and are entitled to a distributive share of his estate if the will should be set aside and the said estate thereby become subject to distribution under the laws of descent of this state, is sufficient to-show that the petitioners are beneficially interested in the estate and are persons aggrieved (within the meaning of sec. 4035, Stats. 1898) by the decision from which they seek to appeal.
    2. The words “near relatives,” as used in such petition, may reasonably be considered as synonymous with “next of kin.”
    3. In support of the discretionary act of granting leave, under sec. 4035, Stats. 1898, to take an appeal after the statutory time therefor, facts stated in the petition plainly according to their legal effect should b§ deemed sufficiently stated, and the liberal rules applied in support of pleadings generally should be extended to such petition.
    4. The adverse party in such a proceeding may, if the court deems it reasonably necessary, have the petition made more definite and certain as to any material statements therein.
    'Appeal from an order of the circuit court for Sauk county: E. Rat SteveNS, Circuit Judge.
    
      Affirmed.
    
    Special proceedings to obtain leave to appeal from a decision of the county court admitting a will to probate after the time absolutely allowed therefor by statute had expired.
    The application was made by and on behalf of citizens of the kingdom of Great Britain. The petition stated as regards the interest of the persons desiring to contest the probate of the will, as follows:
    “Tour petitioners are near relatives and heirs at law of the said deceased, and are entitled to a distributive share in said estate, should said will be set aside and declared void and the said estate thereby become subject to distribution under the laws of descent of this state.”
    The appeal is by the executor named in the will from an order granting the application of the petitioners.
    
      G. Bievens, for the appellant,
    contended, inter alia, that the statute only allows this proceeding to m% aggrieved -party; and this court has repeatedly held that unless a party has some legal interest in the controyersy (applying it to this case, unless these parties would have a legal right to the estate or some part of it if the will be set aside) he cannot be aggrieved, and bence has no standing in court and no right to interfere. Now, in order to have any legal interest in the property, these parties must be next of Icin, not merely “near relatives” as stated in the petition, and the petition must state the facts from which the court may draw the conclusion that they are next of kin. Downer v. Howard, 47 Wis. 476; Marx v. Row-lands, 59 Wis. 110, and cases cited by appellant on page 112; jLigon v. Hawlces, 110 Tenn. 514, 75 S. W. 1072; Deering H. Go. v. Johnson, 108'Wis. 275. There must of necessity be a broad discretion exercised by the court in determining whether or not to allow an appeal; but that discretion only applies to the facts showing excuse for the default in not appealing in time. It does not and cannot apply to the question of whether the party appealing is a proper party — -has any rights to vindicate. That is not a question of discretion. It is a fact, to be affirmatively established by proper and legitimate evidence before the court can be called upon to exercise any discretion in the premises.
    Eor the respondents there was a brief by Bulhley, Gray & More and Stone & Malone, and oral argument by J. A. Stone.
    
   MaRshauu, J.

The learned counsel for appellant with characteristic candor conceded upon the oral argument that the question of whether one aggrieved by the decision of a county court in a probate matter, who has permitted the time absolutely allowed by statute for him to appeal to elapse without using such remedy, should be allowed to avail himself thereof notwithstanding the delay, is one peculiarly addressed to the discretionary authority of the appellate tribunal; that its solution of the matter is final in the absence of a clear abuse of such authority; and that this court would not be warranted in finding that there was such abuse in this case, if the words of the petition quoted in the statement are sufficient to show that the persons alleged to be beneficially interested in the estate of William G. Scaife, contingent upon the instrument purporting to be bis last will and testament being adjudged invalid, are in fact sucb beneficiaries.

Counsel insists tbat in no event could tbe alleged beirs of tbe deceased participate in tbe distribution of bis estate, unless they are bis nest of bin; tbat without a satisfactory showing as to sucb matter in tbe petition, it is fatally defective. Standing on those premises counsel confidently argues that nothing short of a statement of facts, not legal conclusions, from which tbe court can fairly conclude tbat tbe alleged beirs are tbe next of kin of .tire deceased, is sufficient in any reasonable view of tbe matter to show tbat they have any grievance entitling them to appeal from tbe decision sought to be reviewed, and tbat the mere statement tbat they are near relatives of tbe deceased is not enough.

Tbe contention of counsel, based on tbe assumption tbat there is nothing in the petition to show tbe interest of tbe petitioners in the estate of tbe deceased, except tbe statement tbat they are near relatives of sucb deceased, may be sound. Tbe idea tbat it was vital to tbe petition tbat it should state facts, not conclusions, showing tbat tbe alleged contingently interested persons were next of kin of tbe deceased, is grounded on tbe theory tbat tbe term “next of kin,” as used in respect to the distribution of estates of intestates, means nearest in relationship according to tbe degrees of consanguinity, as regards sharing in tbe estate of tbe intestate. This court has not so held (Estate of Sargent, 62 Wis. 130, 22 N. W. 131), though there is much authority supporting sucb view. Pinkham v. Blair, 57 N. H. 226; Snow v. Durgin, 70 N. H. 121, 47 Atl. 89; In re Kane’s Estate, 185 Pa. St. 544, 40 Atl. 90; Anderson v. Potter, 5 Cal. 63, 64; Leavitt v. Dunn, 56 N. J. Law, 309, 28 Atl. 590; Steel v. Kurtz, 28 Ohio St. 191, 197; Armstrong v. Grandin. 39 Ohio St. 368; Duffy v. Hargan, 62 N. J. Eq. 588, 50 Atl. 678.

We will not take up the burden now of discussing tbe question of tbe precise scope of tbe term “next of kin” which tbe •court suggested but declined to decide in the Estate of Sargent, supra. It is clear, at least, that it includes those entitled to take the personal estate in case of intestacy. That is always its meaning when used simpliciter, as it is said (N. Y. L. Ins. & T. Co. v. Hoyt, 161 N. Y. 1, 9, 55 N. E. 299), while it is doubtless used sometimes as synonymous with the broad •signification of “heirs at law.” Serfass v. Serfass, 190 Pa. St. 484, 42 Atl. 888. The term “heirs at law” is often used in its popular sense of including heirs in the legal sense— those upon whom the law casts title to realty possessed by the intestate at the time of his death, and next of kin as well. 'Treating the latter term and the former only in their legal sense the one refers to those who take the personalty of an intestate, and the other to those in whom the title to the realty possessed by the intestate vests immediately upon his death. Under our statutes there is very little difference between the two terms, since, in the main, those who take the personalty of an intestate are the same as those upon whom the law casts the title to the realty. Secs. 2270, 3935, Stats. 1898.

It follows from what has been said that if the petition in this case sufficiently brought to the attention of the court that the petitioners were the next of kin of the deceased or his heirs at law, then it must be held sufficient. We find, as indicated in the statement, that the petition went further than to merely state that the alleged heirs are near relatives. It stated that they “are near relatives and heirs at law of the deceased and are entitled to a distributive share of his estate,” etc. The indications are that it was carefully worded by the ■draftsman, having regard to the technical distinction between '“next of kin” and “heirs at law,” and that “near relatives” was used as synonymous with the former term. That meaning may reasonably be attributed to such term. Cox v. Wills, 49 N. J. Eq. 130, 22 Atl. 794; Handley v. Wrightson, 60 Md. 198, 206.

Thus obviously the petitioners in their petition laid claim to being, or to represent, tbe persons entitled to share tbe personalty belonging to tbe estate of tbe deceased, using tbe term “near relatives” in tbat regard, as well as being part owners of tbe realty left by the deceased, using tbe term “heirs at law” in tbat regard. If it was competent in any reasonable view for them to allege tbe fact of relationship to tbe deceased according to tbe legal effect thereof, then certainly tbe petition was sufficient. We are inclined to tbe view tbat, at least in support of tbe discretionary act called in question, facts stated' plainly according to their legal effect should be deemed to-have been sufficiently stated, and tbat tbe liberal rules for reading out of pleadings facts essential to support them should be broadly applied. Thereby every fact essential to support the cause of action or defense which tbe pleader evidently intended to state, not pleaded expressly, yet which can be reasonably read out of tbe language used by reasonable inference, is regarded as sufficiently stated for tbe purpose of supporting-tbe pleading upon a challenge thereof for insufficiency, and essential facts are deemed to be inferentially stated which are-alleged according to their legal effect. Miller v. Bayer, 94 Wis. 123, 68 N. W. 869; Pfister v. Sentinel Co. 108 Wis. 572, 84 N. W. 887; Miles v. Mut. R. F. L. Asso. 108 Wis. 421, 84 N. W. 159; South Milwaukee Co. v. Murphy, 112 Wis. 614, 88 N. W. 583; Emerson v. Nash, 124 Wis. 369, 102 N. W. 921.

It cannot be well doubted tbat an allegation in a complaint tbat plaintiffs are tbe heirs at law of a person named, in case of tbat being material to a cause of action or defense, would be regarded upon demurrer ”to sufficiently plead tbe underlying facts warranting such statement as a legal effect. Tbe learned counsel concedes tbat tbe practice is well established by our Code tbat facts plainly stated according to their legal effect are to be deemed to be sufficiently stated upon a challenge of tbe pleading for insufficiency, though tbe pleading-may at tbe same time be open to a motion for indefiniteness; but insists,that a more strict rule should be applied in testing; tbe sufficiency of a petition in snob a case as we bave bere, because tbe latter is not, as is tbe former, a statement of facts to. be proved, but is both tbe statement and tbe proof; that noway is open to tbe adverse party to bave tbe statement made more specific. If that were strictly true, it might be a good reason why tbe court of first instance should apply tbe stricter rule contended for, but not a sufficient warrant for condemning tbe failure to do so as a clear abuse of judicial discretion.

But counsel is in error in tbe view that tbe adverse party in such a proceeding as this is powerless to gain any information of tbe petitioner’s status or to require such status to be more definitely made known to tbe court than tbe petitioner chooses-to disclose in tbe petition as at first presented. Tbe statute (see. 4035) governing tbe matter prohibits allowing tbe petition without reasonable notice to tbe party adversely interested. Further, tbe court is only permitted to allow tbe petition of a party aggrieved, if it shall appear that justice requires a review of tbe case. That contemplates a bearing-upon petition with tbe party adversely interested before tbe court, if be so desires. It contemplates that such adverse party may join issue with tbe allegations of tbe petition, if be-shall be so advised, and that be may bave all reasonable opportunity to bring to tbe attention of tbe court, definitely, what tbe real status of tbe petitioner is. He may, doubtless, properly ask for and obtain, if tbe court deems it reasonably necessary, a more definite statement of material matters than the petition as at first presented contains. Tbe court can determine the right of tbe matter upon affidavits, or upon tbe petition alone, or upon evidence in support of and against tbe pe • tition, taken in open' court, or otherwise by its direction as in-its judgment may be best suited to the administration of justice in tbe premises. Thus tbe reason suggested by counsel why tbe liberal rules applied in support of a pleading when-challenged for insufficiency should not be extended to a petition of tbe sort under consideration does not in fact exist.

By the Court.- — Tbe order is affirmed.  