Frame v. Thormann

• Decision Date: 25 April 1899
• Citation: 102 Wis. 653,79 N.W. 39
• Parties: FRAME ET AL. v. THORMANN.
• Court: Wisconsin Supreme Court

102 Wis. 653

79 N.W. 39

FRAME ET AL.

v.THORMANN.

Supreme Court of Wisconsin.

April 25, 1899.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

From an order of the county court admitting to probate the last will and testament of Joseph Fabacher, deceased, and appointing Andrew G. Frame, executor, Antoinette Thormann, contestant, appealed to the circuit court; and, from a judgment of that court affirming the judgment of the county court, she appeals. Affirmed.Carney, Clasen & Walsh, for appellant.

Ryan & Merton, for respondents.

CASSODAY, C. J.

It appears from the record: That Joseph Fabacher died March 3, 1897, at Touro Infirmary, in New Orleans, leaving a paper writing, purporting to be his last will and testament, bearing date October 29, 1896, and executed at Waukesha, Wis., and which writing (omitting the formal parts) is to the effect (1) that the testator directed all his just debts, funeral expenses, and expenses of administration to be paid out of his personal estate; (2) that he donated and bequeathed to his beloved wife, Magdalena, the income of $20,000 of 4 per cent. New Orleans city bonds, to be paid by his executor or trustee of his last will and testament, as collected by him, upon the express condition that she should continue to live and cohabit with him as his wife and care for him in health and sickness until his death, otherwise that she should take nothing thereunder; (3) that he thereby willed and bequeathed unto his brother Johannes, of Havre, France, an annuity of $200 to be paid to him each year so long as he should live, and at his death the further sum of $100 to provide for his funeral expenses; (4) that all the rest, residue, and remainder of his property, both real and personal, wheresoever situated, he thereby gave, devised, and bequeathed to his 10 children, to wit, Joseph H., Albert, Anthony, Louis, Peter, John J., Barbara, Alois, Magdalena, and Jacob A., share and share alike, to each one-tenth part thereof, to have and to hold as their own forever; (5) that upon the death of his said wife, Magdalena, or upon the violation of the provision for her contained therein by reason of nonperformance on her part of the condition thereof, he thereby willed, devised, and bequeathed said $20,000 of 4 per cent. New Orleans city bonds to his said 10 children, share and share alike, to each one-tenth part thereof; (6) that he thereby nominated and appointed Andrew J. Frame, of Waukesha, Wis., as sole executor and trustee of his said last will and testament. That upon the death of Joseph Fabacher such last will and testament was presented by such executor to the county court for Waukesha county, for probate, March 27, 1897, and that that court on the same day fixed the time for the hearing thereof May 4, 1897, and thereupon caused notice thereof to be given. That upon the hearing thereof May 4, 1897, this contestant and the appellant herein, Antoinette Thormann, appeared by her attorney, and objected to such probate upon the grounds (1) that she was a daughter and sole heir at law of said deceased; that the deceased was formerly married to one Maria Anna Frey, May 13, 1850, at New Orleans; that the issues of said marriage were two children, viz. Antoinette, the contestant herein, and Andreas, who died, about 1887, unmarried and without issue; that said deceased and his said wife Maria Anna lived and cohabited together as husband and wife from the date of their marriage up to 1864, at which time he, the deceased, deserted and abandoned his said wife, Maria Anna, and went to live in concubinage with Magdalena Frey, a sister of his said wife, and continued so to live until about January, 1874; that January 12, 1874, his said wife, Maria Anna, instituted an action for divorce on the ground of adultery, and that a decree to that effect was granted therein to Maria Anna January 27, 1874, by the Fifth district court of the parish of Orleans; that thereafter said deceased in form married Magdalena Frey at New Orleans; that the deceased had 11 children by Magdalena Frey, all of whom were illegitimate, and 10 of whom are named in the will, three of whom were born after such supposed marriage, and eight of whom, including Lawrence, not named in will, were born before such supposed marriage; that at the time of the death of Joseph Fabacher, deceased, he was domiciled in New Orleans, La., and an inhabitant and resident thereof; that the county court of Waukesha county had no jurisdiction of such probate, nor in the settlement or distribution of the estate of the deceased; (2) that any attempt on the part of Joseph Fabacher, deceased, to acquire or create a fictitious domicile, inhabitancy, or residence in Waukesha, Wis., was made with a fraudulent purpose and intent of depriving the contestant, Antoinette Thormann, of her legitimate and hereditary rights, as the sole heir at law of the deceased, under the statutes of descent of Louisiana; (3) that the execution of such will was procured by undue influence exercised over the deceased, and particularly by Magdalena Frey, the alleged widow of the deceased; (4) that the will was not duly executed by Joseph Fabacher in the manner and form required by law. That August 17, 1897, such paper writing was admitted to probate by the county court of Waukesha county. That thereupon the contestant appealed from such judgment of the county court so admitting the will to probate to the circuit court for Waukesha county. That subsequently the cause was tried by the circuit court of Waukesha county and a jury, and at the close of the trial the jury returned their verdict upon the questions submitted to them, and to the effect (1) that the paper writing presented for proof, allowance, and probate, as the last will and testament of Joseph Fabacher, deceased, was executed in conformity with the provisions of the statutes of Wisconsin relating to wills; (2) that the alleged last will and testament of Joseph Fabacher, deceased, was his own voluntary act and deed; (3) that the domicile of Joseph Fabacher at the time of his death, March 3, 1897, was at the city of Waukesha, county of Waukesha, and state of Wisconsin. That thereupon the circuit court found, as matters of fact, in effect, (1) that the deceased duly made and executed, as and for his last will and testament, the proposed will offered for probate, and did duly make, execute, and acknowledge the same to be his last will and testament October 29, 1896, at Waukesha, in Wisconsin; (2) that the deceased so executed such will of his own free will and accord, without any influence being brought to bear upon him whatever, and that he was not under undue influence at the time of the making and subscribing of such will, and that in the execution thereof he had duly complied with all the requirements of the statutes of Wisconsin; (3) that at the time of the making of such will, and at the time of the death of the deceased, said Joseph Fabacher was a resident and inhabitant and his domicile was at the city of Waukesha, in Wisconsin; that June 20, 1895, said testator, in his lifetime, duly acquired a domicile and residence in, and then and there became an inhabitant of, Waukesha, in Waukesha county, Wis.; that such residence and domicile continued uninterruptedly from June 20, 1895, down to and including March 3, 1897, the date of his death; (4) that at and prior to the making and execution of said last will and testament the deceased was of sound mind and memory, and competent to make a will; (5) that September 30, 1895, said testator, Joseph Fabacher, in his lifetime, and while so domiciled at Waukesha, was duly and legally married at the city of Milwaukee, in Wisconsin, to said Magdalena Frey, who survives him as his widow; that the issue of said Joseph Fabacher and Magdalena Frey were 11 children, to wit, Joseph H., Albert, Lawrence, Anthony, Louis, Peter, John J., Barbara, Alois, Magdalena, and Jacob, all of whom were born prior to said marriage of September 30, 1895, and all of whom were by their said father, Joseph Fabacher, in his lifetime, and subsequently to the said marriage, duly and severally recognized by him as his children and offspring, and that all of said children were at the time of his death, and now are, heirs at law of said Joseph Fabacher, deceased; (6) that the contestant herein, Antoinette Thormann, is a child and heir at law of said Joseph Fabacher, deceased, by such former marriage with Maria Anna; (7) that in said will the testator did not mention his son Lawrence as a beneficiary or legatee, nor did he mention his daughter Antoinette Thormann, but that such omission was not by mistake or inadvertence on the part of the testator. And. as conclusions of law, the circuit court found (1) that the domicile of the testator, Joseph Fabacher. at the time of his death, March 3, 1897, was at the city of Waukesha, in Wisconsin; (2) that said testator left him surviving his widow, Magdalena Fabacher, and the 12 children mentioned, as his next of kin and heirs at law, all of whom were of full age, except Magdalena and Jacob, and that all of said children were the legitimate and duly-legitimatized children of said Joseph Fabacher, deceased, under and by virtue of the laws of Wisconsin; (3) that the will of Joseph Fabacher, deceased, was entitled to probate in the county of Waukesha and state of Wisconsin as the last will and testament of said deceased, and the same was thereby admitted to probate as the last will and testament of said deceased; (4) that judgment should be entered admitting to probate the will of said deceased, and affirming the judgment of the county court admitting the same to probate, and that the records and proceedings therein should be transmitted to the county court of Waukesha county for further proceedings according to law; that the proponent's costs and attorney's fees and the fees of the guardian ad litem in the circuit court should be paid out of...