Battis v. Montaba (In re Battis)
| Decision Date | 26 April 1910 |
| Citation | 143 Wis. 234,126 N.W. 9 |
| Parties | IN RE BATTIS. BATTIS v. MONTABA. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Winnebago County; Chester A. Fowler, Judge.
Petition by Martin T. Battis, residuary legatee under the will of Allan P. Battis, deceased, against Frances May Montaba, formerly Frances May Battis, to have a paragraph of the will adjudged revoked. From a judgment dismissing the petition, petitioner appeals. Reversed and remanded, with directions.
On April 28, 1890, Allan P. Battis and the respondent were married. On December, 13, 1902, Allan P. Battis, the testator, made his will. Thereby he gave to a cousin all his interest in his boiler shop business, the buildings in which it was conducted, and the lots upon which the buildings stood. He gave to Helen Wiesenberg, a stranger, certain bank stock and money or real estate mortgages sufficient to make the sum of $8,000. The fourth and fifth paragraphs of the will are as follows:
“Fourth. I give and bequeath unto my wife Frances May Battis, of the city of Oshkosh, the sum of ten thousand dollars. To have and to hold the same unto her, the said Frances May Battis, her heirs, executors, administrators and assigns forever.
Fifth. I hereby give, devise and bequeath unto my brother, Martin T. Battis, of the city of Oshkosh, all the rest, residue and remainder of my property of every name and nature, real, personal or mixed, to have and to hold the same unto him the said Martin T. Battis, his heirs, executors, administrators and assigns forever.”
On July 5, 1903, the respondent secured a divorce from Allan P. Battis on the ground of cruel and inhuman treatment. The judgment provided that the plaintiff should retain the piano and household furniture, and that the defendant should pay her her disbursements and $2,500 “as her full and final share and allowance in the final division and distribution of the estate and property real and personal of the defendant, and that the plaintiff upon payment of said” sum should be “divested of all right, title, and interest in and to the property of the defendant either real or personal.” Subsequent to the divorce Allan P. Battis visited at the home of his former wife, manifested a solicitude for her health and happiness, and made her small gifts. He also sustained friendly relations with her mother and family, visited regularly at the home of her mother and sister, made presents to them, and stated to them that he had made such provision in his will for his former wife that she would not suffer from want. To the knowledge of Allan P. Battis, his former wife married Abe Montaba. On January 16, 1907, Allan P. Battis was sick and addressed a letter to his former wife's mother, expressing a desire to see Frankie before he died, asked that she be given his regards, and wished her good luck as long as she lived. Allan P. Battis died May 4, 1908, leaving no brothers or sisters, except the brother Martin T. Battis, and no widow or issue.
The will was admitted to probate. The executor complied with some of the provisions of the will, and, while he still had some $50,000 in his hands for distribution, the residuary legatee, the brother of the deceased, petitioned the county court to have it adjudged that the divorce and the final distribution of the estate and property of Allan P. Battis in 1903 had annulled and revoked the fourth paragraph of his will, and that the residue of the estate, after compliance with the other provisions of the will, should be awarded to the petitioner. The county court entered judgment adjudging that the bequest to the respondent was annulled by the divorce and final division and distribution of the estate and property of Allan P. Battis, and that Frances May Montaba should take nothing under the will. Upon appeal to the circuit court the court entered judgment dismissing the petition. This is an appeal from the judgment of the circuit court.Weed & Hollister (Charles Barber, of counsel), for appellant.
Eaton & Eaton, for respondent.
SIEBECKER, J. (after stating the facts as above).
The respondent avers that the admission of the will to probate precludes the appellant by his petition from invoking the power of the court to declare the fourth paragraph of the will to have been revoked and annulled. The argument is made that the admission of the will to probate established the whole writing and made it operativeand effective in all its parts; and hence that appellant cannot in this manner establish a revocation of any part thereof. The question raised by the petitioner is whether or not paragraph 4 of the will was revoked by the judgment awarding a divorce between the husband and wife, and, pursuant to section 2364, St., a final division and distribution of the testator's estate. No attempt is made to annul the probate of the will or to have the will declared ineffective because of its revocation. It need not, therefore, be determined whether this proceeding would lie to assail a will in its entirety after probate. The inquiry for determination is whether this is a proper and appropriate proceeding wherein the court may ascertain whether or not paragraph 4 of the will was revoked by the subsequently changed condition and circumstances of the testator respecting his relations to his divorced wife. This in no way affects the validity of the other parts of the will, its execution, or the admission to probate. Manifestly the writing probated embodies the will of the testator. If paragraph 4 is found to have been annulled under the condition and circumstances submitted to the court, all the other parts of the writing will stand as the will of the testator. In the proceeding admitting the will to probate, the only question actually presented to the court was whether the writing propounded as decedent's will was entitled to probate, and no other question was presented. The determination of this question in no way specifically included a determination respecting the annulment of paragraph 4. The legal effect and the validity of the contents of the writing are not involved. As a matter of practice, such questions are usually considered separately in probate and administration proceedings. Farmer v. Sprague, 57 Wis. 324, 15 N. W. 382. The statutes impose on the county courts the duty of ascertaining what persons are entitled to receive a testator's estate under his will. This necessarily involves a determination of whether any part of the writing presented as the will should be rejected as annulled, in order that distribution of the estate may be directed pursuant to the effective parts of the writing. This proceeding...
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