Hebblewhite v. Scott (In re Hebblewhite's Will)

• Court: Wisconsin Supreme Court
• Writing for the Court: MARTIN
• Citation: Hebblewhite v. Scott (In re Hebblewhite's Will), 228 Wis. 259, 280 N.W. 384 (Wis. 1938)
• Decision Date: 21 June 1938
• Parties: In re HEBBLEWHITE'S WILL. HEBBLEWHITE v. SCOTT et al.

228 Wis. 259

280 N.W. 384

In re HEBBLEWHITE'S WILL.HEBBLEWHITE

v.SCOTT et al.

Supreme Court of Wisconsin.

June 21, 1938.

Appeal from a judgment of the County Court of Waupaca County; A. M. Scheller, Judge.

Affirmed.

This appeal is from a judgment of the County Court of Waupaca County, dated October 15, 1937, construing the will of Earl T. Hebblewhite, deceased, dated June 19, 1936. Earl T. Hebblewhite was a resident of the city of Stockton, San Joaquin County, California, where he died on the 5th day of November, 1936. Tracy S. Hebblewhite, the appellant herein, is a former wife and is named as the executrix of said will. Mr. Hebblewhite left surviving as his only heirs at law, two aunts and eight cousins. He owned certain real estate located in Waupaca County. His will, the construction of which is involved, provides as follows:

“Will of Earl T. Hebblewhite.

“Being of sound mind on this date (June 19, 1936) and starting on a trip east, I wish in the case of my death for my entire estate, with the exception of $100.00 to go to my ex-wife Tracy S. Hebblewhite. Said party to be executrix without bond. Said party will have entire use of said estate but cannot sell any of business property until such time as she marries again. Said estate then to be divided equally between my three cousins Walter, Clement & Jeanette Hebblewhite.

“The $100.00 will be given to Karl Ross Post No. 16 of Stockton for the express purpose of erecting a Legion Emblem at America Legion Park at a cost of $100.00. If not used for that purpose in 1 yr said $100.00 will revert back to estate.

“Signed this 19th day of June 1936

“Earl T. Hebblewhite

“P. S. My coat of arms & History goes to my cousin Edward Hebblewhite.”

The material facts will be stated in the opinion.

Lloyd D. Smith, of Waupaca, for appellant.

Edward J. Hart, of Waupaca, and Williams & Williams and Barnard & Mullen, all of Oshkosh, for respondents.

MARTIN, Justice.

Earl T. Hebblewhite was at the time of his death on November 5, 1936, a resident of the city of Stockton, San Joaquin County, California. His will, set out above, was duly admitted to probate in San Joaquin County, California. It appears that the appellant, Tracy S. Hebblewhite, obtained a divorce from Earl T. Hebblewhite on March 12, 1934; that there were no children of said marriage and that Mr. Hebblewhite did not remarry. The only heirs at law are aunts and cousins. At the time of his death, Mr. Hebblewhite owned certain real estate located in Waupaca County, Wisconsin.

On December 3, 1936, on the petition of Tracy S. Hebblewhite, ancillary proceedingswere begun in the County Court of Waupaca County, and thereafter, on January 5, 1937, letters of administration with the will annexed were granted to M. B. Scott of the city of Waupaca. Mr. Scott caused an inventory and appraisal of the real estate located in Waupaca County to be filed with the County Court of said county. On July 10, 1937, Mr. Scott, as administrator with the will annexed, filed a petition in the County Court of Waupaca County in which ancillary probate was being had, asking for a construction of the will of Mr. Hebblewhite. After due hearing and on October 15, 1937, the court entered the following order and judgment construing the terms of said will as follows:

“That the provisions of paragraph one of the will of Earl T. Hebblewhite, deceased, as here stated, to wit:

“‘Being of sound mind on this date (June 19, 1936) and starting on a trip east, I wish in the case of my death for my entire estate, with the exception of $100 to go to my ex-wife Tracy S. Hebblewhite. Said party to be executrix without bond. Said party will have entire use of said estate but cannot sell any of business property until such time as she marries again. Said estate then to be divided equally between my three cousins Walter, Clement and Jeanette Hebblewhite.’

“Properly construed to express the intention of the testator as gathered from the whole will and the surrounding circumstances hereby is construed to have the force and effect, that, it was the intention of the testator to give Tracy S. Hebblewhite, his ex-wife, a life estate in his real property, which life estate is subject to termination upon the remarriage of Tracy S. Hebblewhite, and that upon her remarriage or death, the remainder in fee to the three cousins named in the will, to wit: Walter, Clement and Jeanette Hebblewhite.”

The appellant contends, first, that the County Court of Waupaca County had no jurisdiction to construe the will and erred in assuming such jurisdiction; second, that the court erred in its construction of the will, in determining that the appellant obtained only a life estate in the real estate located in Waupaca County and that upon her remarriage or death said real estate passed to the cousins named in the will, and, third, that the court erred in refusing to permit evidence to be admitted as to the relation existing between deceased and his former wife at the time of making the will.

The applicable sections of the Wisconsin Statutes are as follows. Section 238.07 provides that: “A last will and testament executed without this state in the mode prescribed by the law either of the place where executed or of the testator's domicile shall be deemed to be legally executed and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state; provided, said last will and testament is in writing and subscribed by the testator.”

No contention is made here that the will was not executed in the mode prescribed by the laws of California.

Sec. 238.19, Wis.Stats., provides: “When a will devising lands in this state, or any interest therein, shall have been duly proved and allowed in the proper court of any other of the United States or the territories thereof a copy of such will and of the probate thereof, duly authenticated, may be recorded in the office of the register of deeds of any county in which any such lands are situated, and when so recorded, and all such as may have heretofore been so recorded, shall be as valid and effectual to pass the title to such lands as if such will had been duly proved and allowed by the proper court in this state.”

Sec. 310.07, Wis.Stats., provides: “Any will admitted to probate without this state and in the place of the testator's domicile may be admitted to probate and recorded in this state. When a copy of any such will and the judgment admitting it to probate duly authenticated, shall be produced by the executor or other person interested therein to the county court, such court shall appoint a time and place of hearing, and cause notice thereof to be given as required by section 310.04. If on the hearing it shall appear to the court that the order or decree admitting such will to probate was made by a court of competent jurisdiction and is still in force, the copy and the probate thereof shall be filed and recorded, and the will shall have the same force and effect as if it had been originally proved and allowed in this state and the subsequent proceeding may be the same.”

Sec. 310.08, Wis.Stats., provides: “Where a decedent died domiciled in another state and the will of said decedent disposes of real estate in this state, any county court of a county in which any of such real estate is located, may admit said will to probate. Notice to creditors and to public administrator and state tax commission shall be given as in the case of wills of decedents domiciled in Wisconsin at time of death and an executor or administrator may be appointed.”

In Ford v. Ford, 70 Wis. 19, at page 44, 33 N.W. 188, at page 194, 5 Am.St.Rep. 117, the court said: “The validity of every devise or disposition of real estate by will must be governed by the law of the place where the land is situated, and this includes not only the form and mode of the execution of the will, but also the lawful power and authority of the testator to make such disposition. Story, Confl.Laws, § 474, and note; 2 Greenl.Ev. § 670; 1 Redf., Wills, p. 398, sub. 8; Robertson v. Pickrell, 109 U.S. 608, 3 S.Ct. 407 [27 L.Ed. 1049];White v. Howard, 46 N.Y. 144. ***”

The appellant contends that by statute and subsequent decisions, the rule stated in Ford v. Ford, supra, has been overruled and cites Gailey v. Brown, 169 Wis. 444, 450, 171 N.W. 945,In re Gertsen's Will, 127 Wis. 602, 106 N.W. 1096, 115 Am.St.Rep. 1060, in support of such contention. In Gailey v. Brown, supra, the court refers to sec. 2295, Statutes (now sec. 238.19, above quoted.) After quoting the statute, at page 449, 171 N.W. at page 947, the court continues: “The effect of these statutes is to make the decrees of the courts of testator's domicile conclusive as to the existence and validity of a will and gives such decrees the same effect as if rendered by the courts of this state.”

In this case, the testator being a resident of the state of Illinois, his subsequent marriage, under the Illinois law, revoked the will. This court said: “The determination of these questions legally and necessarily includes the inquiries by such foreign courts whether or not testator made a valid will, and, if so, whether it had been legally revoked before his death, and such judgment of the courts in sister states is to be accepted here as fixing the status of the instrument propounded as a will and, under these statutes, has the same effect as if the original proceeding had been had in the court of this state. It is considered that it results from this statutory modification of the common law that the question whether or not a purported will has been revoked is necessarily an inquiry in such foreign probate proceeding and is committed to the court of testator's domicile for determination under the law of his residence.”

Neither case supports appellant's contention. Both involve the question of admission or denial of probate. They do not involve a question of construction. The appellant relies upon the case...