Estate of Joyce , 238 Wis. 370 ( 1941 )

An alternative writ of mandamus was issued by this court on December 4, 1940, upon the petition of the appellant herein, James T. Joyce, the husband of Mary Cousins Joyce, deceased, directed to the Hon. MERRILL R. FARR, as county judge in probate of Eau Claire county, Wisconsin, commanding said judge to decide the question of jurisdiction raised by the petitioner's plea in abatement in the matter of the estate of Mary Cousins Joyce, deceased, or to show cause to the contrary before this court on December 16, 1940, why he has not complied with said writ. (See State ex rel. Joyce v. Farr, 236 Wis. 323, 295 N.W. 21.) On December 14, 1940, Judge FARR made return to the writ, including therein his decision, in which he overruled the plea in abatement and confirmed all acts in the probate proceedings as the court of original jurisdiction until December 20, 1939, and after that date, as ancillary to the proceedings in the probate court of Bexar county, Texas, together with a certified copy of his findings of fact, conclusions of law, and judgment entered thereon. James T. Joyce appeals from this judgment. John W. Scott and Percy C. Atkinson, executors of the will of Mary Cousins Joyce, deceased, are the respondents on this appeal.

The appellant, James T. Joyce, filed a plea in abatement on January 29, 1939, and on September 10, 1939, filed an amended plea, objecting to the jurisdiction of the county court of Eau Claire county in the matter of the probate of the will of Mary Cousins Joyce, deceased, and praying that all of the orders theretofore entered in said proceedings be vacated, and that the petition of John W. Scott and Percy C. Atkinson, as executors, for the probate of said will, be dismissed for want of jurisdiction.

The facts are not in dispute. Mary Cousins Joyce died testate in the city of San Antonio, Bexar county, Texas, on January 14, 1936. She and her husband at that time, and for several years prior thereto, were domiciled in Bexar county, Texas. She left surviving, her husband, James T. Joyce of San Antonio, Texas, and Marshall Cousins, a brother, of Madison, Wisconsin. At the time of her death she owned certain real estate and personal property located in Eau Claire county and had certain creditors who were residents of that county. She left a will executed by her on October 15, 1935, which is the will now in probate, and also a purported will executed by her on January 14, 1936, the day of her death. This latter will was not offered for probate until August 8, 1938. It was declared invalid by the Texas court.

On May 19, 1937, John W. Scott and Percy C. Atkinson, as executors of the will of October 15, 1935, petitioned the county court of Eau Claire county for the probate of said will. In connection therewith, all the heirs at law and legatees entered their appearance in writing and signed a waiver of the notice provided for in secs. 310.04 and 311.03, Stats. On the same day an order was entered by said court admitting the will to probate and appointing Scott and Atkinson, both residents of Eau Claire, as executors without bond. Appraisers were appointed and a general inventory of the real estate and personal property located in Eau Claire county was made and filed. The real estate was appraised at $9,700 and the personal property at $1,944.19. No administration or probate proceedings had been commenced in Texas at the time the will was admitted to probate in the county court of Eau Claire county. On July 15, 1940, a supplemental inventory was filed showing cash items received by the executors from insurance policies on the life of the deceased's brother, Marshall Cousins, who died on March 10, 1939, in whose policies of insurance said Mary Cousins Joyce was the named beneficiary, in the sum of $20,896.12; also other items consisting of certificates of stock, cash and choses in action amounting to $189.64; also a certain piece of real estate located in Chippewa county appraised at $720.

Within the time limited for filing claims, W. H. Frawley, Sr., and W. H. Frawley, Jr., each in his own behalf, filed claims against the estate which were finally compromised and allowed at $2,500. An order was entered by the court directing the executors to pay said sum of $2,500 out of any moneys which they might then have in their hands in settlement of the Frawley claims, which sum was so paid out of the proceeds of the insurance policies.

On July 25, 1938, Scott and Atkinson petitioned the county court of Bexar county, Texas, for the probate of the will in question to be ancillary to the proceedings had in the county court of Eau Claire county. To this application appellant filed objections on the ground that the Texas court was without jurisdiction to conduct ancillary proceedings for the reason that the county court of Eau Claire county had no jurisdiction other than in ancillary proceedings to the domiciliary court in Bexar county, Texas. The Texas court sustained appellant's objections and dismissed the application for ancillary proceedings.

On November 1, 1938, Scott and Atkinson, as executors and trustees, made application to the Texas court to probate the will in question, which had theretofore been admitted to probate in the county court of Eau Claire county. At this time the petition of other parties for the probate of the purported will of January 14, 1936, was pending in the Texas court. By stipulation of all the parties it was agreed that the Texas court might hear both applications together. Such hearing was had on August 9, 1939. The court found that the will of January 14, 1936, was not a valid will and that the will of October 15, 1935, was the last will of the deceased, Mary Cousins Joyce, and ordered that same be admitted to probate. An appeal was taken by the petitioners, who had propounded the will of January 14, 1936, to the district court for Bexar county, which court on December 15, 1939, affirmed the decision and findings of the county court of Bexar county. No appeal was taken from the decision of the district court and it appears that the record has been remanded by that court to the county court, and proceedings are now being had in that court as an original probate.

In its findings of fact the county court of Eau Claire county makes the, following statements:

"That at all times the executors have administered said property both real and personal, as an original administration, making disbursements from the personal property and collecting rentals and other moneys, as shown by a document entitled `Trustees Account and Report' which was filed with this court on the 25th day of January, 1940."

"That during all the time hereinbefore mentioned, James T. Joyce acquiesced in and consented to each and every thing which was done by the county court of Eau Claire county and that during all of said time no administrator or executor had been appointed in the state of Texas, the domicile of Mary Cousins Joyce."

"That all of the proceedings in the county court for Eau Claire county have been in good faith and that all of said proceedings to this date [December 14, 1940] have been treated and carried on as an original or primary probate."

As a conclusion of law the court found:

"I find that by virtue of section 310.08 of the Wisconsin statutes the probate of the will of Mary Cousins Joyce was an original probate until the 20th day of December, 1939, the date of the decree of the district court of Bexar county, Texas, and that upon the granting of letters testamentary to John W. Scott and Percy C. Atkinson in Texas, the probate in the Eau Claire county court became ancillary."

Whereupon the following judgment was entered:

"Wherefore, it is adjudged, that the plea in abatement of James T. Joyce be denied; that all the acts of the Eau Claire county court, as the court of original jurisdiction, up until the 20th day of December, 1939, are confirmed and that said probate subsequent to that date is declared to be ancillary to the proceeding in the probate court for Bexar county, Texas; that except for the purpose of examining and allowing the final account of the executors herein, the county court for Eau Claire county has no further jurisdiction over the personal property which is now in the hands of the executors and that upon such accounting, said personal property shall be forthwith transferred to John W. Scott and Percy C. Atkinson, as executors of the will of Mary Cousins Joyce, deceased, now in probate in Bexar county, Texas."

The appeal herein is from the foregoing judgment. The following opinion was filed June 12, 1941: The appellant contends that the county court of Eau Claire county erred, (1) in holding that it had original probate jurisdiction until December 20, 1939; and (2) in holding that from and after that date it had ancillary jurisdiction.

It is not important what name is ascribed to the proceedings had in the county court of Eau Claire county. The main question is, Did that court have jurisdiction, upon the conceded facts, to admit to probate the declared last will and testament of Mary Cousins Joyce, she being a nonresident of Wisconsin at the time of her death, but owning real estate and personal property located in Eau Claire county and having creditors who resided in that county? The proceedings in the Eau Claire court extended to both the real and personal property of the deceased in Eau Claire county until the will was offered and admitted to probate in the Texas court. The will was admitted to probate in the Texas court on December 20, 1939, since which date the proceedings in the Eau Claire county court are deemed ancillary to the probate proceedings now being had in the Bexar county court, Texas.

Sec. 253.03, Stats., so far as here material, provides:

"The jurisdiction of the county court shall extend to the probate of wills and granting letters testamentary and of administration on the estates of all persons deceased who were at the time of their decease inhabitants of or residents in the same county and of all who shall die without the state having any estate within such county to be administered, and to any other cases authorized by law."

Sec. 310.08, Stats. 1935, provides:

"Where a decedent died domiciled in another state and the will of said decedent disposes of real estate in this state, any county court of a county in which any of such real estate is located, may admit said will to probate. Notice to creditors and to public administrator and state tax commission shall be given as in the case of wills of decedents domiciled in Wisconsin at time of death and an executor or administrator may be appointed."

Prior to the amendment by ch. 176, Laws of 1935, sec. 310.08, Stats., so far as here material, provided:

"Where there is located in this state real estate of a decedent who died domiciled in another state and the will of said deceased shall dispose of said real estate and said will appears to be valid and effectual under the law of this state so as to dispose of said real estate, any county court in this state in which any part of such real estate shall be located, may admit said will to probate whether or not said will has been offered for or admitted to probate in the jurisdiction of the domicile of the testator, but the decree admitting same to probateshall be limited so as to affect only real estate locatedwithin this state."

It will be noted that the 1935 amendment (ch. 176, Laws of 1935) has stricken out the provision "but the decree admitting same to probate shall be limited so as to affect only real estate located within this state." Does sec. 310.08, Stats., as amended by ch. 176, Laws of 1935, confer jurisdiction upon the county court of Eau Claire county to admit to probate the will in question and to administer the real and personal estate of the testator located in Eau Claire county until the time the will was admitted to probate in Bexar county, Texas?

The general rule is, in the absence of statutory provision to the contrary, that the proper jurisdiction for the probate of a will, in chief, is at the place of the domicile of the testator, and that probate elsewhere should be ancillary. However, in Restatement, Conflict of Laws, p. 569, § 469, it is said:

"The will of a deceased person can be admitted to probate in a competent court of any state in which an administrator could have been appointed had the decedent died intestate."

Under comment c, p. 569, it is said:

". . . Probate in a state other than at the domicile can be had although the will has not been admitted to probate in the state of the decedent's domicile. But a court in its discretion will ordinarily postpone action in so far as the will concerns movables until the court at the domicile has acted,if proceedings in the domicile for probate are pending at thetime the application for probate is made in the other state."

In the instant case, at the time the will was offered for and admitted to probate in the county court of Eau Claire county, no application had been made by anyone for the probate of the will in Texas. In fact, the petition to admit the will to probate in the Texas court was not made until November 1, 1938, more than a year and one half after it had been admitted to probate in the Eau Claire county court.

Sec. 253.03, Stats., hereinbefore quoted, provides that the jurisdiction of county courts shall extend to the probate of wills and the granting of letters testamentary and of administration, (1) on the estates of all persons deceased, who were at the time of their death, inhabitants of or residents in the same county, (2) and of all who die without the statehaving any estate within such county to be administered, (3) and to all other cases authorized by law. Sec. 311.01, relating to the administration of intestate estates, provides:

"When any resident of this state shall die intestate letters of administration of his estate shall be granted by the county court of the county of which he was a resident. If any person not a resident of this state shall die, leaving estate to be administered in this state, administration thereof shall be granted by the county court of any county in which there is estate to be administered, and the administration first legally granted shall extend to all the estate in this state. . . ."

If the quotation from the Restatement on the Conflict of Laws is considered in connection with the provisions of secs. 311.01 and 310.08, Stats. 1935, it would follow that the county court of Eau Claire county had jurisdiction to admit to probate the last will and testament of Mary Cousins Joyce and to administer her estate, both real and personal property, located in that county.

We have had no occasion heretofore to consider the effect of the 1935 amendment to sec. 310.08, Stats. A proper construction of this section, considered in connection with secs.253.03 and 311.01, now that the limitation relative to real estate has been removed, would necessarily confer power on county courts to administer as to both real and personal property located within the county, and we must so hold. The judgment of the county court of Eau Claire county specifically provides that from the date of the admission of the will in question to probate in the Texas court, that the proceedings in the local court are declared to be ancillary to the proceedings in the Texas court, that except for the purpose of examining and allowing the final account of the executors in connection with the proceedings had in the county court of Eau Claire county, that said court has no further jurisdiction over the personal property now in the hands of the executors, and that upon such accounting, the personal property shall be transferred to the same individual executors who continue as such in the proceedings now pending in the Texas court. We think the procedure proper and the judgment must be affirmed.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on October 7, 1941.