Estate of Buffington

^* Motion for rehearing denied, without costs, on September 28, 1946. A petition for probate of the will of Fannie E. Buffington, deceased, was filed July 31, 1945. Objections to the admission of the will to probate were filed by Grace E. Atkinson. The proponents of the will moved to strike the objections. The motion was granted and judgment was entered admitting the will to probate. From that judgment and from the order striking her objections, the objector appeals.

Byron A. Buffington and Fannie E. Buffington, husband and wife, and residents of the city of Eau Claire, executed mutual and reciprocal wills on June 11, 1929. The second paragraph of the will of Byron A. Burlington provided:

"Second: To provide for the contingency of my wife, Fannie E. Buffington, and I dying at or about the same time, we have each made a will on this date providing that the residue of our estates after the payment of debts, expenses and specific bequests, shall go to the survivor in the event that he or she survives the other for a period of thirty days; otherwise, our residuary estates go to certain persons and charities mutually agreed upon."

The third, fourth, and fifth paragraphs provided for bequests to certain named individuals. The sixth paragraph read:

"Sixth: I give, devise and bequeath all the rest and residue of all the property which I may own at the time of my death, whether real, personal or mixed, and wherever situated, to my wife, Fannie E. Buffington, in the event and only in the event that she survives me for a period of thirty days from and after the date of my death. In the event my said wife does not survive me for said period of thirty days then such residue (meaning all not required to pay the charges and bequests contained in paragraphs `First, Third to Fifth' hereof) shall be used to pay the following bequests numbered `Seventh to Twelfth,' inclusive."

The seventh to twelfth paragraphs contained other bequests, including a specific and a residual bequest to the objector, Grace E. Atkinson.

Byron A. Burlington died in 1929. His will was probated in Eau Claire county and his estate was assigned in accordance therewith to his widow. She executed a will dated November 1, 1940, and a codicil dated October 3, 1944, which were offered and admitted to probate in the court below following her death on July 20, 1945. It is the position of the appellant that the wills executed by Byron A. Buffington and Fannie E. Buffington, his wife, on June 11, 1929, constituted a mutual agreement to dispose of their property as therein set out; that under the agreement the survivor was to receive the property of the other subject to certain other bequests; that upon the death of the survivor his or her property, including that acquired from the other, was by the agreement to be distributed in accordance with paragraphs seventh to twelfth, inclusive, of the will of Byron A. Buffington; and that the appellant, by virtue of those paragraphs, was entitled to receive property considerably in excess of that bequeathed to her by the will and codicil admitted to probate.

The court below held that the question as to whether the wills constituted a contract was not properly before it upon the petition for probate of the later will and codicil and that such a claim should be tried in an independent proceeding. It also ruled that the appellant had no standing to object to the will offered for probate in that she took under such will, that she was not an heir at law, and would not take by descent if the will were denied.

The court below properly held that the appellant had no standing to object to the will. One must have some interest in the disallowance of a will in order to object to its probate. An heir at law might do so, if he would receive more by descent in case the testamentary disposition were not to be established. In re Rohling (1940), 18 N.Y. Supp. 2d 877. The appellant, however, was not an heir at law of Fannie E. Buffington. She also would have been entitled to object to the will and codicil offered for probate had she been able to offer a prior will for probate containing a more favorable provision for her. In re Will of Hunt (1904),122 Wis. 460, 100 N.W. 874. We may assume, without deciding, that a contract such as that claimed would give appellant standing, but nothing to which she points lends the least color to her claim that a contract existed between Burlington and his wife to dispose of their property. The only basis asserted for such a contract is the provision made by paragraphs second and sixth of his will, which falls far short supporting the contention.

Paragraph second recites that Burlington and his wife each has made a will providing that the residue of his or her estate after the payment of debts, expense, and specific bequests should go to the survivor in the event that he or she might survive for a period of thirty days, and that if such were not the case, the residue should go to certain charities and persons, including appellant, mutually agreed upon. Paragraph sixth carries into effect the arrangement stated in paragraph second by devising the residue to Fannie E. Buffington provided she were to survive him for a period of thirty days. If she should not survive him, the residue was to be used to pay the certain named bequests which had been mutually agreed upon.

Fannie E. Buffington survived her husband for more than thirty days and thereby the alternative bequests in paragraphs seventh to twelfth, inclusive, of her husband's will became inoperative. It is; pursuant to such alternative and mutually agreed upon bequests that the appellant claims. There was such contract as that claimed in the objections, and the appellant did not thereby acquire standing as an interested party to object to the admission of the will and codicil offered for probate.

By the Court. — Judgment affirmed.