Figi v. Figi

• Decision Date: 05 June 1923
• Citation: 181 Wis. 136,194 N.W. 41
• Parties: FIGI v. FIGI ET AL.
• Court: Wisconsin Supreme Court

181 Wis. 136

194 N.W. 41

FIGI

v.FIGI ET AL.

Supreme Court of Wisconsin.

June 5, 1923.

Appeal from Green County Court; John L. Sherron, Judge.

In the matter of the application for the appointment of a guardian for John Figi, alleged incompetent, against J. Henry Figi and others, contestants. Appeal from a judgment appointing a general guardian. Reversed, with directions to dismiss.S. J. Luchsinger, of Oshkosh, and Gilbert, Ela, Heilman & Raeder, of Madison, for appellant.

W. A. Loveland, of Monticello, and W. H. McGrath, of Monroe, for respondents.

DOERFLER, J.

One John Figi, a widower, who at the time of the hearing in the county court herein referred to was of the age of about 79 years, for many years prior to December, 1921, was a resident of the village of New Glarus, Green county, Wis. In such village he owned and occupied a home, and therein and in the immediate surrounding country, he had invested what little means he possessed outside of the home. A son, Jacob Figi, resided in Ripon, Fond du Lac county, where he operated a hotel.

Some time in November, 1921, John Figi suffered a stroke of paralysis, and while in a helpless state was transported to the home of his son Jacob, at Ripon, with whom he has ever since made his home, and where at the time of the filing of the petition and of the hearing, he resided. When the matter came on before the county court, the alleged incompetent, through his attorneys, moved to dismiss the petition for the reason that the alleged incompetent at the time of the making and filing of such petition was not a resident of Green county, Wis., but was a resident of Fond du Lac county, Wis., and that therefore the county court of Green county had no jurisdiction. In support of this motion there was filed on behalf of the contestant an affidavit of the alleged incompetent, from which it appears that in December, 1921, he left his home and former residence in the village of New Glarus, with the intention of acquiring, and that he did acquire, a permanent home and residence with his son Jacob Figi, in the city of Ripon, Fond du Lac county, Wis., where he has since resided and now resides.

The court thereupon proceeded with the taking of the evidence, and the alleged incompetent testified that when he left New Glarus he did so with the intention of establishing his home with his son Jacob, at Ripon, and that he had no intention of returning to New Glarus. These facts were also corroborated by the testimony of Jacob Figi, and it appears from the record that shortly after removing to Ripon, the alleged incompetent leased his home at New Glarus to strangers. No testimony was offered in behalf of the petitioner in opposition to the foregoing.

[1] The abandonment of a residence once established, and the acquiring of a new residence, is to a large extent a matter of intention.From the affidavit of John Figi above referred to, and from the uncontradicted testimony as above in substance detailed, there can be no question but what at the time of the filing of the petition and of the hearing, the alleged incompetent had abandoned his former residence and acquired a new one in Fond du Lac county. The evidence and proof being uncontradicted, the question of residence resolves itself into one of law, and the inevitable conclusion which must necessarily follow is that the alleged incompetent established and had at the time and since the filing of the petition maintained his residence and home in Fond du Lac county, Wis., and that such county was the county of his residence.

[2] The proceedings herein were prosecuted under and pursuant to the provisions of section 3976 of the Statutes, which is a section contained in and under chapter 170 of the Statutes, entitled “Guardians and Wards.” The section referred to, standing alone, does not constitute residence as a condition precedent to the proceedings for the appointment of a guardian. Such section, however, being a part of chapter 170 of the Statutes as above entitled, necessitates an examination and review of other sections contained in this chapter, to determine whether it was the legislative intent to require as a basis for jurisdiction, among other things, the residence of the alleged incompetent within the county over which the court has jurisdiction.

[3] Section 3962, among other things, provides:

“All persons under the age of twenty-one years shall be deemed minors, and the county court in each county may appoint guardians for minors and others subject to guardianship, being residents in the same county and also to such as shall reside without the state and have any estate within the county.”

Section 3962 therefore refers not only to guardianships of minors, but all others subject to guardianship; and in express language limits the jurisdiction of the county...