Daniels' Estate, In re, 220

• Decision Date: 01 February 1972
• Docket Number: No. 220,220
• Citation: 53 Wis.2d 611,193 N.W.2d 847
• Parties: In re ESTATE of Alice E. DANIELS, formerly known as Alice E. Krebs, deceased. Charles W. DANIELS, Appellant, v. Frederick Julius DRAVES, Jr., individually and as Executor of the Estate of Alice E. Daniels, deceased, Respondent.
• Court: Wisconsin Supreme Court

Page 847

193 N.W.2d 847

53 Wis.2d 611

In re ESTATE of Alice E. DANIELS, formerly known as Alice E.

Krebs, deceased.

Charles W. DANIELS, Appellant, v. Frederick Julius DRAVES, Jr., individually and as Executor

of the Estate of Alice E. Daniels, deceased, Respondent.

No. 220.

Supreme Court of Wisconsin.

Feb. 1, 1972.

The appeal is from an order allowing the will of Alice E. Daniels to probate. Alice E. Daniels lived all her life in Racine and was married to Leo J. Krebs in 1926. After Mr. Krebs died in 1967, she met Charles W. Daniels, the appellant (a resident of Ohio) after corresponding with him for several months. He came to Wisconsin to visit Alice E. Krebs. He was a widower. She visited him in his home in Wakefield, Ohio, and they returned to Racine to make plans for their marriage. On May 9, 1968, they were married in Kentucky.

Mrs. Daniels made a will on December 5, 1968, in which she gave $2,000 of an estate amounting to about $30,000 to her husband. She died on January 12, 1969. Frederick Julius Draves, Jr., the executor named in the will, offered it for probate in Racine county. Charles W. Daniels objected to the admission of the will and moved to dismiss the petition for probate on the ground of want of jurisdiction because his wife had died a resident of Ohio. The county court held a hearing on the motion, rendered a decision that Alice E. Daniels was domiciled in Racine county at the time of her death and ordered the will admitted to probate. From this order, Charles W. Daniels appeals.

Konnak, Constantine & Krohn, Racine, for appellant.

Stewart, Peyton & Crawford, Racine, for respondent.

HALLOWS, Chief Justice.

At the time the will was made and at the time of the probate of the will, under Wisconsin law a husband had no right to elect against his wife's will. However, under sec. 861.05, Stats., created by ch. 339, sec. 26, Laws of 1969, which became effective April 1, 1971, a husband is now given the right of an election. However, the right of election by the husband existed under the Ohio law in force at the time of the death.

At the time of Mrs. Daniels' death, a county court in Wisconsin had probate jurisdiction of the wills 'of all persons deceased who were at the time of their deceased inhabitants of or residents in the same county . . .' ¹ The Wisconsin cases in the past have considered the term 'residence' as used in this statute interchangeable with 'domicile.' Will of Baldwin (1951), 260 Wis. 195, 50 N.W.2d 463, 51 N.W.2d 361; Estate of Morey (1956), 272 Wis. 79, 74 N.W.2d 823; Estate of Eaton (1925), 186 Wis. 124, 202 N.W. 309; Estate of Read (1928), 195 Wis. 128, 217 N.W. 709. ²

The parties stipulated in the trial court that Alice E. Daniels upon her marriage to Charles W. Daniels took his domicile and this appears to be the general rule. 25 Am.Jur.2d, Domicil, p. 37, sec. 48; Restatement, Conflicts of Laws, Domicil, p. 50, sec. 27. In Will of Baldwin, supra, we indicated this rule that a married woman takes the domicile of her husband was applicable to determining a wife's residence or a domicile under sec. 253.10(1), Stats. However, Wisconsin has deviated from this rule in divorce cases and has held that a wife might have a separate residence or domicile for venue or jurisdictional purposes in a divorce action if her husband's cruelty drove her away. This court has never decided whether a wife on friendly terms with her husband might acquire a separate residence, if he consented. The instant facts do not show that Alice E. Daniels or Charles W. Daniels ever considered the question of a separate domicile for each of them. The parties did not live apart so we do not have the question of whether a wife living apart from her husband by mutual consent may acquire a separate domicile. See Younger v. Gianotti (1940), 176 Tenn. 139, 138 N.W.2d 448; In re Daggett (1931), 255 N.Y. 243, 174 N.E. 641. We, therefore, accept the stipulation and consider, what was the domicile of Charles W. Daniels at the time of Alice E. Daniels' death?

A domicile may be classified as a domicile by birth, a domicile by choice, or a domicile by operation of law. See Black's Law Dictionary, 4th Ed., p. 572, 'Domicile.' We deal here with domicile by operation of law, which was acquired by marriage, and also with domicile of choice. It might be said that 'domicile' includes residence but 'residence' does not necessarily include domicile. Domicile is generally regarded as the place where a man has his fixed and permanent home or residence to which he intends to return whenever he is absent therefrom. It is not a residence for any special or temporary purpose but one intended to be permanent for an unlimited or indefinite period. ³

Since one's residence or domicile for probate purposes is jurisdictional, the proponent of a will has the burden of persuasion of the issue. Any person seeking the affirmative action of a court has the burden of proving or demonstrating its jurisdiction to grant the relief sought. 21 C.J.S. Courts § 112, p. 172. ⁴ There is no question that Charles W. Daniels' domicile was in Ohio at the time of the marriage. Once a domicile has been established, it is presumed to continue until a new domicile is created; Baker v. Department of Taxation (1945), 246 Wis. 611, 18 N.W.2d 331; In re Will of Heymann (1926), 190 Wis. 97, 208 N.W. 913, and that the burden is on one alleging such change to prove it; see 25 Am.Jur.2d, Domicil, pp. 62, 63, secs. 86, 87.

Thus the issue to be decided on this appeal is whether the trial court's finding that Alice E. Daniels' domicile at the time of her death was Racine is against the great weight and clear preponderance of the evidence; if it is not, we must affirm. A review of the evidence convinces us that the facts and the inferences reasonably to be drawn therefrom create such a conflict that there is no great weight or clear preponderance of the evidence on the issue and this is one of those cases where no matter which view the trial court took of the facts, it would have to be affirmed, although if this court were the trier of the facts, it would not have come to the same conclusion.

After the marriage on May 9, 1968, in Kentucky, the parties spent about two thirds of their married life in Racine and one third in Ohio. At the time of the marriage, Mrs. Daniels maintained an apartment on Carlisle avenue in the city of Racine; Mr. Daniels owned a home in Shad Hollow, a short distance from Wakefield, Ohio. From May 10 to June 15, the parties spent in Racine and then returned to Ohio for six days. On June 22 they returned to Racine for 31 days and then went back to Ohio on July 23 for 17 days. On August 9 they again came to Racine where they stayed 42 days, returning to Ohio on September 21. They then stayed in Ohio for 31 days but on October 22 came back to Racine, where they remained for 46 days. On December 7 they returned to Ohio so Mr. Daniels could be medically examined and continue to receive disability checks. While there, he became ill and was hospitalized for approximately a week. On January 8 they returned to Racine and four days later Mrs. Daniels died.

The executor Draves testified Charles said he liked Racine because there was so much to do there and a few days after Mrs. Daniels' death, Mr. Daniels made a statement while at the bank in connection with a joint checking account that he was a resident of Racine and intended to stay. In an insurance application on October 24, 1968, Charles gave his present residence as Racine and stated he had lived there since the date of their marriage and his former residence was Wakefield, Ohio. There was testimony Mr. Daniels expressed an interest in investing in real estate in Racine after he sold his house in Ohio. After Mrs. Daniels died Mr. Daniels repeated his intention to stay and invest in Racine. There was testimony by three witnesses that Mrs. Daniels made strong declarations of her dislike for Ohio and living there.

There was other testimony of statements made by mr. Daniels to the effect he intended by buy a home on Washington avenue in Racine across from Mrs. Daniels' sister, and that he and Mrs. Daniels could live upstairs and the sister could live downstairs. The sister testified Mr. Daniels told her as late as December 'to stay put' in her Washington avenue home because when he got back from Ohio he was going to buy the house across the street. There was testimony Mrs. Daniels had said she and Mr. Daniels should buy the house and they could live upstairs and her sister could live downstairs, and that Mr. Daniels stated this would be a good idea. There was other testimony that Charles had stated at a funeral home that he and Mrs. Daniels intended to sell the Ohio house and buy the one on Washington avenue. There was testimony Mr. Daniels sought employment in Racine and stated as late as November, 1968, he intended to get a part-time job as a...