Eaton v. Eaton (In re Eaton's Will)

• Decision Date: 10 February 1925
• Citation: 186 Wis. 124,202 N.W. 309
• Parties: IN RE EATON'S WILL. EATON v. EATON.
• Court: Wisconsin Supreme Court

186 Wis. 124

202 N.W. 309

IN RE EATON'S WILL.EATON

v.EATON.

Supreme Court of Wisconsin.

Feb. 10, 1925.

Appeal from Green County Court; W. A. Loveland, Judge.

Proceedings by Jay H. Eaton, executor, to probate the last will and testament of J. H. Eaton, deceased, opposed by Mayme Eaton. From an order refusing to admit will to probate and an order making allowance to decedent's widow, executor appeals. Order denying probate affirmed, order granting widow's allowance reversed, and cause remanded.

This is an appeal from an order of the county court for Green county, Hon. W. A. Loveland, judge, refusing to admit to probate the last will and testament of J. H. Eaton, deceased, and from an order of allowance to his widow.

The deceased, J. H. Eaton, died on the 14th day of March, 1924, being then of the age of 70 years, at Mechanicville, N. Y., having on the 6th day of September, 1923, executed at Monroe, Green county, Wis., an instrument purporting to be his last will and testament. Such instrument is as follows:

“I, J. H. Eaton, of Venice, in the county of Los Angeles, in the state of California, being of sound mind and memory, do make, publish and declare this my last will and testament, hereby revoking all former wills, bequests and devises by me made:

First. One thousand dollars cash to be given to Mettie J. Monroe, of Monroe, Wis.

Second. To my wife, Mary Ellen Eaton, the sum of one dollar, as there is no community property and that I have already given her a just and proper amount during my lifetime.

Third. To my nephew, Jay H. Eaton, all the balance of my estate.

I do hereby constitute and appoint Jay H. Eaton executor of this my last will and testament without bond.

In witness whereof, I have hereunto set my hand and seal this 6th day of September, A. D. 1923.

J. H. Eaton. [L. S.]

The foregoing instrument was signed, sealed, published and declared by the said J. H. Eaton as and for his last will and testament, in the presence of us, who, at his request, in the presence and in the presence of each other, have hereunto subscribed our names as attesting witnesses; and said testator was then of sound and disposing mind and memory.

G. Clarke Dodge.

Grace Schroeder.”

Prior to the year 1911, the deceased was a resident of Monroe, Wis., and during such year he married Mayme K. Eaton, in Texas, and in the following year proceeded to Venice, Cal., where he established a residence, engaged in business, and lived with his wife until in July, 1923. He then left Venice, leaving his wife there, and came to Monroe, Wis., where he remained until the beginning of October, 1923. While living in Venice he was the owner of real estate there, of a value estimated between $5,000 and $7,000, and this real estate, before he departed for Monroe, was transferred to his wife. He also had about $9,000, which he deposited in the Citizens' Bank of Monroe, in the name of his brother George, to be held in trust for him. He also was the owner of real estate at Monroe, of the value of about $5,000.

After the death of the deceased, the nephew, Jay H. Eaton, filed the alleged will with the county court of Green county, and made application to the court for the probate of the same. In due time the widow, Mayme K. Eaton, appeared in the probate proceedings and objected to the probate of the will, upon the grounds: First, that the court lacked jurisdiction, because the deceased at the time of his death was not a resident of Green county, Wis., nor of the state of Wisconsin; second, that the instrument was not executed in the manner provided by law; third, that the execution of the instrument was procured by the exercise of undue influence; and fourth, that at the time of the execution of the will the deceased was of unsound mind, and not possessed of sufficient mental capacity to make a will. At the conclusion of the hearing the court made findings of fact that at the time of his death the deceased was a resident of the state of California, and that at that time he left certain real estate in the state of Wisconsin, and also certain personal property within the state of Wisconsin, part or all of which may be community property, under the laws of the state of California; that the convenience of the parties and witnesses and that the interests of justice would be best served by delaying the consideration of the question whether said instrument should be admitted to probate in Wisconsin until the courts of California had the opportunity to pass on the questions as to the validity of said instrument. The court also declined to proceed further with the hearing of evidence as to whether said instrument or any other instrument should be admitted in Wisconsin as the last will and testament of said deceased, or to determine whether said deceased died testate or intestate, until after the courts of California shall have had reasonable opportunity to act on said question, and the hearing of such petition was held open until such time.

Upon an application made by the widow to the county court of Green county, an order was made by the court, allowing her the sum of $500 as a widow's allowance under the statute, up to June 5, 1924, and the further sum of $50 per month during the pendency of the proceedings for the settlement of the estate.

J. M. Becker, of Monroe, for appellant.

R. J. Grode, of Monroe, and Richmond, Jackman, Wilkie & Toebaas, of Madison, for respondent.

DOERFLER, J. (after stating the facts as above).

Counsel for the appellant first challenges the finding of the court that the deceased at the time of his death was a resident of California. For about 13 years before his death the deceased lived with his wife in Venice, Cal. He established a home there, and engaged in business. It therefore must be conceded that until the month of July, 1923, he had a fixed residence in California, and such state became his place of domicile. While a resident of California during the period aforesaid, he made periodical trips to Monroe, where he visited his relatives and renewed his old acquaintanceships. His visit, therefore, during the summer of 1923 at Monroe, in and of itself had no particular significance with respect to any change of residence. Appellant's counsel, however, strenuously contends that there are many facts and circumstances which appear in the evidence which establish quite conclusively the abandonment of his residence in California and the establishment of a new residence in Monroe. Among such facts and circumstances relied upon are the following: That before leaving California he transferred to his wife the homestead; that he took with him a large sum of money, aggregating about $9,000, and deposited the same in the Citizens' Bank of Monroe, in the name of his brother George, with the understanding that such sum should be held in trust for him; that when he left California early in July, 1923, he had had some difficulties with his wife, and that he departed on unfriendly terms, and from the date of such departure until the time of his death in March, 1924, he did not return to Venice or to his wife, and his wife did not again see him alive; that in October, 1923, while his health was failing, he traveled to San Diego, Cal., with a nurse whom he met in Chicago, and who attended him, and at her request proceeded to Mechanicville, N. Y., where he remained at her home and under her care until March, 1924, when he died; that all of the living relatives of the deceased reside in the vicinity of Monroe, and that all of the beneficiaries under his will, excepting his wife, reside at Monroe, and that all of his property, real and personal, of which he was the owner at the time of his decease, is located at Monroe; that it appears from the evidence of his wife that she was unable to locate any property belonging to the deceased in the state of California; that both before and after the execution of his will he made statements to a number of his friends and acquaintances at Monroe that he was through with Venice, Cal.; that he had settled with his wife; and that he had returned to Monroe to make it his future home, although he might spend his winters in a warmer climate, on account of the rigorous climate of Wisconsin during the winter months. It must be conceded that the showing so made strongly evidenced, not only an intention to abandon his residence in California, but to establish a residence at Monroe, Wis.

The respondent, on the other hand, made a showing by documentary evidence which is quite convincing that the deceased at the time of his death still retained his residence in California. The will, which is dated September 6, 1923, and which was executed at Monroe, recites that the testator's residence is in Venice, in the county of Los Angeles, in the state of California. In one of the paragraphs of his will he bequeaths to his wife the sum of $1, and recites that there is no community property, and that he had previously bestowed upon her a proper and just amount of his estate. Before leaving Venice he executed a deed in blank, of certain property of which he was the owner at Monroe, Wis., and procured the signature of his wife to such deed upon the pretext that he intended to use the proceeds of the sale in investment in California property. This deed, however, he contemplated to deliver to his nephew, Jay Harvey Eaton, a son of his brother George Eaton; but, the deed not being properly witnessed as required by the laws of Wisconsin, was deemed ineffectual by him, and for that reason was not made use of. On August 13, 1923, while the deceased was at Monroe, Wis., it appearing that the deed above referred to was ineffectual, he executed a new deed of property at Monroe, Wis., to his nephew Jay Harvey Eaton. This deed among other things contained the following:

“This conveyance is intended as and for and does constitute an absolute conveyance of all my right, title and interest in and to said above described property;...