* Motion for rehearing denied, without costs, on September 28, 1946. *Page 608 In proceedings pursuant to a petition filed by Loretta Eastman and three sisters for the admission to probate of a will, *Page 609 dated June 15, 1939, of their brother, Richard J. Sweeney, objections to the probate thereof were filed on behalf of certain heirs at law of a deceased brother and of a deceased sister of the testator. At a hearing on February 23, 1944, pursuant to that petition, the execution and validity of the will of June 15, 1939, were duly established by proof introduced on behalf of the proponents thereof by their attorney, George B. Clementson. Robert M. Rieser, as attorney for the objectors, called as their witness Frank C. Meyer, who testified that he, as attorney for Richard J. Sweeney, drafted a will on October 10, 1943, for him which he then duly executed and directed Meyer to put in a desk drawer in the testator's residence. Mr. Rieser then asked Mr. Clementson whether he was in position to produce that will. Mr. Clementson replied in the negative and added that he had heard about the will and was informed it had been destroyed by the testator; and Mr. Clementson declined to enter into any stipulation concerning it. Upon Mr. Rieser's attempting to examine Mr. Meyer concerning the contents of the will, the introduction then of any such evidence was duly objected to by Mr. Clementson upon grounds which he stated; but after some discussion by counsel the court ruled that Mr. Rieser could proceed with such examination of Mr. Meyer, subject to reserving to Mr. Clementson the opportunity and right to cross-examine Mr. Meyer at a later date. Under those conditions, Mr. Meyer testified as to the contents of the will of October 10, 1943, in answer to Mr. Rieser's direct examination; and upon the conclusion thereof Mr. Clementson declined to cross-examine Mr. Meyer excepting to inquire as to the physical appearance of that will and the identity of the attesting witness in addition to Mr. Meyer. Thereupon the court adjourned the hearing to be resumed at a later date.
On June 9, 1944, the court made an order suspending the proceedings, which had been theretofore commenced, until a petition was filed for the probate of the will of October 10, *Page 610 1943, in accordance with the decision in Will of Burns,210 Wis. 499, 246 N.W. 704. On June 14, 1944, Mr. Meyer died. On June 17, 1944, the Union State Bank, as the executor named in the will of October 10, 1943, filed a petition for the probate thereof. On June 30, 1944, there was filed on behalf of the objectors to the probate of the will of June 15, 1939, a petition for administration of the estate of Richard J. Sweeney as an intestate. On resuming the hearing on October 4, 1944, Mr. Clementson renewed his objections, previously stated at the hearing on February 23, 1944, in relation to admitting Mr. Meyer's testimony as to the contents of the October 10, 1943, will, and the court then concluded to admit that testimony in evidence. Upon solely that testimony findings of fact were made by the court as to the contents of the will of October 10, 1943, including a provision that the testator thereby revoked all former wills made by him. And upon testimony in relation to other matters, the court found that the October 10, 1943, will was destroyed on October 24, 1943, by the testator with the belief, understanding, and sole intention that such destruction would validate, reinstate, and establish his will of June 15, 1939, and that his property would be disposed of in accordance therewith; that such destruction of the October 10, 1943, will was relative, dependent and conditional upon such validation of his former will and the efficacy of the disposition of his property thereunder; and the court concluded that the June 15, 1939, will was revoked by the will of October 10, 1943, and was not revived or validated by the destruction of the latter; that the instrument of June 15, 1939, is not the last will of the deceased and probate thereof should be denied; that the will of October 10, 1943, was not revoked. by the testator and is his last will and should be established and admitted to probate; and that thereunder the proponent thereof, Union State Bank, should be granted letters testamentary. By judgment entered accordingly probate of the *Page 611 June 15, 1939, will was denied; the will of October 10, 1943, was admitted to probate; and the Union State Bank was appointed executor thereof. From this judgment an appeal was taken by the objectors to the probate of the will of June 15, 1939; and the proponents of that will served and filed notice of a motion to review, under sec. 274.12, Stats., the court's rulings admitting the testimony of Mr. Meyer to which they had objected, and denying the admission to probate of the will of June 15, 1939. In order to sustain appellants' claim that Richard J. Sweeney died intestate, it was incumbent upon them to establish by competent evidence that there was a valid and effective revocation of his will of June 15, 1939, the original execution and validity of which was established at the hearing on February 23, 1944, by the uncontroverted evidence introduced and relied upon by the proponents of that will. When then, without any prior notice to them or any proceeding duly instituted for proving or probating any subsequent will, it became evident, in the course of that hearing, that appellants were attempting to defeat the probate of the June 15, 1939, will by endeavoring to establish by Mr. Meyer's testimony the contents of a subsequent will, — as to which they claim, on the one hand, there was a provision therein which constituted an effective revocation of the former will, and also claim, on the other hand, that there was also a subsequent revocation of the *Page 612 later will, — the trial court should have promptly halted the hearing and proceedings and directed the alleged subsequent will to be duly offered for probate by the executor or other interested parties designated therein; and thereupon, after the giving of due notice and opportunity for all such parties and all others legally affected thereby to participate, the court should have consolidated and continued the proceedings and hearings as was directed in Will of Burns, 210 Wis. 499,246 N.W. 704, for the reasons which are stated in that case. See also Will of Kalskop, 229 Wis. 356, 281 N.W. 646, 282 N.W. 587. If that had been done there would have been no basis for the objection, which was duly made on behalf of the proponents of the June 15, 1939, will, to the introduction at the hearing on February 23, 1944, of Mr. Meyer's testimony as to the contents of the will of October 10, 1943. That objection was warranted and should have been sustained in view of the following reasons stated then by Mr. Clementson, to wit: ". . . this matter is entirety a surprise to me, and I do not propose at this time in a matter of this importance to allow the attorney and the witness to go into the terms of any supposed . . . subsequent will, that has been in whole or in part destroyed; especially as my clients are not present, and they are not present for the simple reason that I knew nothing of any projected will contest. I think this is a matter that ought to be threshed out at a later date, any date the court chooses, when I can have the benefit of my clients,' the proponents,' presence and be enabled to cross-examine intelligently and go into the whole matter thoroughly. . . . I am not prepared at all to meet any evidence."
Mr. Rieser: "I think you should have been."
Mr. Clementson: "Perhaps, had you given me the slightest intimation, or had Mr. Meyer or yourself or anybody else, that there was going to be a will contest, I would have been prepared to the extent of having my clients present at least. I don't propose to be caught this way if I can avoid it, allow all kinds of testimony to come in with nobody present to hear it or contradict it, and therefore no opportunity for me to handle the matter properly, having to rely entirely on the reporter's notes, the transcript which will be later gotten out; *Page 613
I can't do it — it isn't fair. I do not think in a matter of this importance and under the circumstances I should be compelled to submit to it."
Mr. Rieser: "l should like at least to finish with Mr. Meyer's direct examination, your Honor."
Mr. Clementson: "Well, I object to it for the reasons I have stated. . . ."
Finally, after the following colloquy, the direct examination of Mr. Meyer by Mr. Rieser was then permitted by the court under the following ruling and conditions:
The Court: "Supposing we go on and put in Mr. Meyer's evidence; you still would have time; you still want more time, if we could go on and put in Mr. Meyer's evidence. . . ."
Mr. Clementson: "I want the opportunity of cross examining the witness at a later date and have information that I have not now."
The Court: "Well, that would be all right. Well, I am going to let him go on and put this in, and I will reserve the right for you to cross-examine him at a later date; find out what he knows about it."
In view of the reasons thus stated by Mr. Clementson and the fact that at the time of the hearing on February 23, 1944, no proceeding had been instituted or notice given in respect to probating or proving the will of October 10, 1943, — as to which the Union State Bank subsequently filed a petition for the probate on June 17, 1944, — the court should have sustained Mr. Clementson's objections on February 23, 1944; or, in view of the fact that in then overruling the objections, the court said, "I will reserve the right for you to cross-examine him at a later date," and the fact that this reserved right of cross-examination could not be exercised because of the intervening death of Mr. Meyer, the court should not have admitted the testimony in question when the hearing was resumed in October, 1944. Where, as in this Case, the right to cross-examination was not waived, but, on the contrary, was expressly *Page 614 reserved by the court's ruling to be exercised upon the resumption of the hearing, — which was interrupted because it was necessary in order to conduct the proceedings, as directed in Will of Burns, supra, — and where, by reason of the intervening death of Mr. Meyer during this period, the exercise of that right of cross-examination on behalf of the parties entitled thereto was prevented, without any fault on their part, the testimony in question should not have been admitted and must be stricken. 5 Wigmore, Evidence (3d ed.), p. 109, sec. 1390; Charlesworth v. Tinker, 18 Wis. 633;People v. Cole, 43 N.Y. 508, 513; Morley v. Castor, 63 A.D. 38,81 N.Y. Supp. 363; Sperry v. Moore's Estate, 42 Mich. 353,361, 14 N.W. 13 ;Kemble v. Lyons, 184 Iowa, 804,116 N.W. 117; State v. Bingham, 133 S.C. 491, 131 S.E. 603, 607. The provisions in sec. 325.31, Stats., are declaratory of the common-law rule generally adopted on that subject. In considering this statute in Illinois Steel Co. v. Muza,164 Wis. 247, 252, 159 N.W. 908, this court said in relation to the clause, "where the party against whom it is offered shall have had an opportunity to cross-examine said" deceased or absent witness, the following, "whenever the competency of such testimony arises it necessarily involves the inquiry whether or not the objecting party has had such full and adequate opportunity to cross-examine the witness on substantially the same issues. . . ."
It follows that as Mr. Meyer's testimony was not admissible and there consequently is no competent proof of the contents of the will of October 10, 1943, or any provision therein which can be deemed to effect a revocation of any prior will, the court was in error in admitting to probate the will of October 10, 1943, and in denying admission to probate of the will of June 15, 1939. *Page 614a By the Court. — Order and judgment reversed, and cause remanded with directions to enter judgment admitting to probate the will of Richard J. Sweeney, dated June 15, 1939.
RECTOR, J., took no part.
The following opinion was filed September 28, 1946:
FRITZ, J. (on motion for rehearing). In connection with considering and determining the matters stated in the opinion filed on April 29, 1946, due consideration was given to the contention, — which is repeated by appellants and the Union State Bank on a motion for rehearing, — that upon the motion of the respondents, Loretta Eastman, Nellie Allen, and Katherine and Julia Sweeney, for review under sec. 274.12, Stats., this court was without jurisdiction and those respondents were not entitled to have this court review, reverse, or modify the rulings and parts of the judgment which are described in the notice of the motion, as follows:
"1. The ruling of the trial court on the motion of undersigned counsel to exclude from the record the record of the evidence of Frank C. Meyer (Reference: Reporter's paging 2et seq. and 21 et seq. of proceedings Oct. 4, 1944).
"2. Those parts of the judgment dated February 15, 1945, admitting the will dated October 10, 1943, to probate and denying probate of the will dated June 15, 1939, it being the purpose of these respondents to request the supreme court to establish the will dated June 15, 1939, as the last will and testament of Richard J. Sweeney."
Notice of that motion for review was duly served on the respondent, Union State Bank, as well as the appellants; and their appeal was from the judgment in its entirety. As that judgment was based in part upon the court's determination that the will of June 15, 1939, was revoked by provisions to that effect in the will of October 10, 1943, which were testified *Page 614b to by Meyer, questions as to the admissibility of that testimony and the validity of the court's conclusion and judgment based thereon were clearly involved on appellants' appeal. Consequently the review sought in relation to the court's rulings in those respects was clearly within the authorized purposes and scope of a motion to review under the provision in sec. 274.12, Stats. As we said in Hilam, Inc., v. Petersen OilCo. 217 Wis. 86, 94, 258 N.W. 365, —
"The purpose of a motion to review is to reverse or modify some part of a judgment asserted to be erroneous as to the respondent or to have this court consider some ruling made upon a trial, so that in case of a reversal of the judgment, that error, if error it be, may not again occur." See also Jonesv. Pittsburgh Glass Co. 246 Wis. 462, 468,17 N.W.2d 562.
As to how an appeal is to be taken and perfected it is provided in sec. 274.11, (1), Stats., that —
"An appeal is taken by serving a notice of appeal signed by the appellant or his attorney on each adverse party who appearedin the action or proceeding. . . . On appeals from a judgment the appellant shall also' serve the notice of appeal upon all parties bound with him by the judgment who have appeared in the action."
And in sec. 274.12, Stats., it is provided that —
"Every party, other than the appellee, who is served with a notice of appeal shall within thirty days after such service . . . take and perfect his own appeal or be deemed to have waived his right to appeal. . . . In any case the appelleemay have a review of the rulings of which he complains, byserving upon the appellant any time before the case is set down for hearing in the supreme court, a notice stating in whatrespect he asks for a reversal or modification of the judgmentor order appealed from. . . ."
Under and by virtue of those provisions, and the facts (1) that Loretta Eastman, Nellie Allen, and Katherine and Julia *Page 614c Sweeney, as beneficiaries under the will of October 10, 1943, and also under the will of June 15, 1939, were adverse parties who had appeared in the proceeding, and (2) that appellants' notice of appeal had been served on them, they had becomeappellees on the appeal taken by appellants. Consequently, as such appellees they were entitled, under the above-quoted provision in sec. 274.12, Stats., to have a review of the rulings of which they complain by serving upon appellants their notice stating in what respect they asked for a reversal or modification of the judgment appealed from. On the other hand, as they had become appellees by the service on them of appellants' notice of appeal, there was not applicable to them the provision and requirement in sec. 274.12, Stats., that "Every party other than the appellee, who is served with a notice of appeal shall within thirty days after such service . . . take and perfect his own appeal or be deemed to have waived his right to appeal."
In view of the above-stated circumstances in this case, there are not in point such cases as Ledvina v. Ebert,237 Wis. 358, 296 N.W. 110, and Hilam, Inc., v. Petersen Oil Co.,supra, in which the appeal was taken from only the part of the judgment that was not affected by, or as to which there were not involved the rulings specified in a notice for review. Neither are there in point such cases as Lezala v. Jazek,170 Wis. 532, 175 N.W. 87, Stammer v. Kitzmiller,226 Wis. 348, 276 N.W. 629, and Ledvina v. Ebert,supra, in which (1) an appeal was taken by, or the notice of appeal was served on, only some of the defendants, and a review was sought on a motion noticed by a defendant who had not appealed, or in which (2) plaintiff's motion was for the review of rulings or provisions in a judgment in relation to a defendant who had not joined with other defendants in appealing from the judgment (Wisconsin Creameries, Inc., v. Johnson,208 Wis. 444, 243 N.W. 498). *Page 614d
Upon due consideration of other matters presented in the briefs filed on the motion for rehearing or the modification of the mandate, it is our conclusion that there is no occasion to enlarge upon the opinion heretofore filed herein.
By the Court. — Motion for rehearing denied without costs.
Rector, J., took no part. *Page 615