State ex rel. Joyce v. Farr

• Decision Date: 03 December 1940
• Citation: 236 Wis. 323,295 N.W. 21
• Parties: STATE ex rel. JOYCE v. FARR, County Judge in Probate.
• Court: Wisconsin Supreme Court

236 Wis. 323

295 N.W. 21

STATE ex rel. JOYCE

v.FARR, County Judge in Probate.

Supreme Court of Wisconsin.

Dec. 3, 1940.

Motion for leave to file a petition for writ of prohibition and for declaratory judgment.

Original proceeding by the State of Wisconsin, on the relation of James T. Joyce, against the Honorable Merrill R. Farr, as County Judge in Probate of Eau Claire county, state of Wisconsin. On motion for leave to file a petition for writ of prohibition and for declaratory judgment. The State Historical Society of Wisconsin moved to quash and dismiss the petition and application for writ of prohibition and declaratory judgment.-[By Editorial Staff.]

Motion for writ of prohibition and for declaratory judgment denied, and an alternative writ of mandamus issued.

The petition upon which the aforesaid motion is based, among other things, shows that petitioner is the surviving husband of Mary Cousins Joyce who died at San Antonio, Texas, January 14, 1936, leaving surviving her husband and Marshall Cousins, a brother who died on March 10, 1939; that the deceased Mary Cousins Joyce and petitioner were, on January 14, 1936, and for several years prior thereto, citizens and residents of the State of Texas, residing in the city of San Antonio, Bexar County; that said Mary Cousins Joyce left a last will and testament bearing date of October 15, 1935; that said will created a trust fund for the personal protection and welfare of the petitioner and the said Marshall Cousins; that John W. Scott and Percy C. Atkinson of the city of Eau Claire, Wisconsin, were both the executors and the trustees named in said will; that as such trustees they are, by the terms of said trust, directed to pay over to petitioner and to the said Marshall Cousins during their lifetimes, the amount of the interest and income of the trust at regular monthly intervals, and further directed that in the event the interest and income of the trust fund be insufficient, in the discretion of the trustees, to meet the necessary support expense of petitioner and said Marshall Cousins, then, and in that event said executors and trustees are directed that so much of the principal be expended as may be necessary.

The will of said Mary Cousins Joyce was admitted to probate in the county court of Eau Claire County, Wisconsin, on May 19, 1937, and letters testamentary were issued on the same date to said John W. Scott and Percy C. Atkinson. On July 25, 1938, Scott and Atkinson, as executors and trustees, filed an application in the county court of Bexar County, Texas, for the probate of said will, to be ancillary to the proceedings had in the county court of Eau Claire County, Wisconsin. Petitioner filed objections in the purported ancillary proceedings in the county court of Bexar County to the jurisdiction of that court, on the ground that the county court of Eau Claire County had no jurisdiction other than in ancillary proceedings to the domiciliary court in Bexar County, Texas. The latter court sustained petitioner's objections and dismissed the application of Scott and Atkinson for ancillary proceedings in that court. Thereafter, on November 1, 1938, Scott and Atkinson, as executors and trustees, made application to the county court in probate of Bexar County to probate the will of said Mary Cousins Joyce of October 15, 1935, and a purported will of the said Mary Cousins Joyce bearing date of January 14, 1936, was offered for probate by other parties. By stipulation of all the parties, the two applications, that is, the application made by Scott and Atkinson to admit to probate the will of October 15, 1935, and the application of the other parties for the probate of the alleged will of January 14, 1936, were heard together on August 9, 1939, and on August 19, 1939, the court rendered its decision in which it found that the will of January 14, 1936, was not a valid will. The court further found that the will of October 15, 1935, was the last will of said deceased and ordered that same be admitted to probate, whereupon an appeal was taken to the district court which said district court, on December 15, 1939, affirmed the decision and findings of the county court. No appeal has been taken from the order and judgment of said district court and the record in said cause has been returned to the county court in probate of Bexar County, in which court, proceedings in the probate of the will of October 15, 1935, are now pending.

It appears from the petition herein that on January 29, 1939, petitioner filed, in the county court of Eau Claire County, Wisconsin, a plea in abatement to the jurisdiction of that court on the ground that the said Mary Cousins Joyce, at the time of her death and for many years prior thereto, was a citizen of the State of Texas, residing at San Antonio in Bexar County, and that at the time of the filing of the petition herein (October 4, 1940),...