Heymann v. Luchsinger (In re Heymann's Will)

• Decision Date: 11 May 1926
• Citation: 190 Wis. 97,208 N.W. 913
• Parties: IN RE HEYMANN'S WILL. HEYMANN v. LUCHSINGER, PUBLIC ADMINISTRATOR.
• Court: Wisconsin Supreme Court

190 Wis. 97

208 N.W. 913

IN RE HEYMANN'S WILL.HEYMANN

v.LUCHSINGER, PUBLIC ADMINISTRATOR.

Supreme Court of Wisconsin.

May 11, 1926.

Appeal from Winnebago County Court; D. E. McDonald, Judge.

Petition by Seymour B. Heymann for letters ancillary on the estate of Siemon Heymann, deceased, opposed by S. J. Luchsinger, public administrator, etc. From an order denying his petition, petitioner appeals. Affirmed.

This is an appeal from an order entered on the 29th day of December, 1925, denying the petition of Seymour B. Heymann for letters ancillary in the estate of Siemon Heymann, deceased.

Seymour B. Heymann, of Oshkosh, presented a petition to the county court alleging that Siemon Heymann, a resident of the county of Lee, Fla., died testate about the 31st of May, 1925; that he presented therewith an authenticated copy of the last will of the deceased and of the record admitting the same to probate on the 15th day of June, 1925, in the county court of Lee county, Fla.; that the petitioner was the person appointed in and by said last will as executor thereof; that the estate in Wisconsin was of the probable value of $170,000 in personal property and $500 in real estate; that the indebtedness of the deceased was probably $10,000; that the petitioner, Seymour B. Heymann, Oshkosh, Grace Levy, daughter, New York City, Rose Mergentheim, daughter, Winnetka, Ill., and Edna Heymann, daughter, Chicago, Ill., were the next of kin and heirs at law of the deceased, and praying that the exemplified copy of the will be admitted to probate as the last will and testament of the deceased, and that letters testamentary be issued to said Seymour B. Heymann.

S. J. Luchsinger, public administrator of Winnebago county, made answer to the petition, denying that Siemon Heymann was, at the time of his death, a resident of Florida, but, on the contrary, alleging that the deceased, at the time of his death, was a resident of the city of Oshkosh, Winnebago county, Wis.; alleging that the value of the deceased's property in Wisconsin was more than $450,000; and praying that the court enter an order determining that said Siemon Heymann, deceased, was, at the time of his death, a resident of the city of Oshkosh, and that the legal representative of the estate be required to account to the county court of Winnebago county for the personal property and real estate owned by the deceased at the time of his death, and that general administration of said estate be granted to the executor named in the will or to such proper person or persons as the court might determine, to the end that the lawful inheritance tax due to the county and state may be determined.

The matter came on for hearing, and thereafter, on the 29th day of December, 1925, the court entered an order “that the petition of Seymour B. Heymann herein for letters ancillary in said estate be, and the same is hereby, denied.” From this order the petitioner appealed.

William Kaumheimer, of Milwaukee (Morton A. Mergentheim, of Chicago, Ill., and Leon E. Kaumheimer, of Milwaukee, of counsel), for appellant.

Herman L. Ekern, Atty. Gen., and Franklin E. Bump, Asst. Atty. Gen., for respondent.

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

The contest in this proceeding involves the domicile of the deceased at the time of his death.

[1][2][3][4] The law of domicile is well settled. Generally speaking, it may be said that the domicile of a person is his legal home, and that every person has a domicile which may be his then residence or otherwise, depending upon all the facts and circumstances. A domicile, once established, is presumed to continue until a new domicile has been effectuated. Every person has a domicile, and the “man without a country” exists only in fiction, not in law. One may change his domicile for any reason or for no reason. He may expatriate himself from the home where he has long lived and grown old, where he has prospered and gained affluence, where his friends and relatives reside, to become a hermit in a strange country. But whether he changes his domicile or not will depend upon intent and actual change of residence. As to these questions of fact the usual rules of evidence apply. The declarations of the party before, at, and after the time of change of domicile are admissible, as well as all the facts and circumstances gained with such change of domicile. 9 Ruling Case Law, title “Domicile”; 19 Corp. Jur. “Domicile”; Hall v. Hall, 25 Wis. 600;Carter v. Sommermeyer, 27 Wis. 665;Kellogg v. Winnebago County, 42 Wis. 97;Kempster v. Milwaukee, 97 Wis. 343, 72 N. W. 743;Frame v. Thormann, 102 Wis. 653, 79 N. W. 39;Figi v. Voegli, 181 Wis. 136, 194 N. W. 41;Will of Eaton, 186 Wis. 124, 202 N. W. 309;Minnesota Stoneware Co. v. McCrossen, 110 Wis. 316, 85 N. W. 1019, 84 Am. St. Rep. 927.

Applying these principles to the present case, we are called upon to consider the facts as developed by the evidence. Siemon Heymann, prior to December, 1924, had been a resident of Oshkosh, Wis., with a continuous established domicile therein for about 50 years. Until 1923, he had been a merchant in Oshkosh, and had acquired during that time large property interests. He had been married, and the issue of such marriage were the four children named in the petition as heirs and legatees. He was divorced, and for some time prior to December, 1924, he had lived in his residence in Oshkosh as a single man, with a housekeeper who looked after his household affairs. A year or two prior to that time the housekeeper had left him, and a woman resident of Oshkosh came once or twice a week and cared for his house. In 1923, he sold out his mercantile business, and thereafter, until he left Oshkosh, was engaged in looking after his investments.

It appears that Heymann had some controversy with the authorities in Wisconsin over his income tax, and that he was disappointed in the results. On the 14th of November, 1924, the deceased and his son, Seymour B. Heymann, composed and mailed the following letter to the assessor of incomes at the courthouse in the city of Oshkosh:

“Dear Sir: I take this means of advising you that it is my intention to discontinue using my residence at 244 Wisconsin Ave., Oshkosh, Wisc. as my homestead, and to immediately establish my residence in Florida.

I hereby waive the $500.00 homestead exemption for which I filed an affidavit, and you will kindly cancel such exemption.

Please acknowledge, using inclosed envelope.

+-------------------------+
                ¦Very truly,¦S. Heymann.” ¦
                +-------------------------+
                

This letter was written by the son, but it was in fact the joint epistle of father and son. It is significant in connection with what followed.

On the 18th of November the deceased left Oshkosh for Florida. On his way he visited with his daughter Edna in Chicago, and with his daughter Grace in Winnetka. On December 16th he registered at the Franklin Arms...