Thomas v. Thomas

• Decision Date: 25 May 1894
• Citation: 88 Wis. 88,59 N.W. 504
• Parties: THOMAS ET AL. v. THOMAS ET AL.
• Court: Wisconsin Supreme Court

88 Wis. 88

59 N.W. 504

THOMAS ET AL.

v.THOMAS ET AL.

Supreme Court of Wisconsin.

May 25, 1894.

Appeal from circuit court, Grant county; George Clementson, Judge.

Proceedings by William Thomas and others against Joseph Thomas, as executor of the estate of Susan J. Thomas, deceased, and others, to set aside the settlement of Susan J. Thomas as administratrix of the estate of James Thomas, deceased, and the final order of distribution, assigning the whole of such estate to her. From a judgment for defendants, plaintiffs appeal. Affirmed.

This was a proceeding in the county court of Grant county to vacate and set aside the settlement and final order of distribution of the estate of James Thomas, deceased, to his widow, Susan J. Thomas, on the ground that she was never his lawful wife, and had fraudulently procured an assignment of said estate to her. The petitioners are the brothers and sisters of said James Thomas, deceased, and his sole heirs at law. The petition states substantially that James Thomas died July 18, 1883, intestate, without issue or parent, leaving an estate in Grant county worth over $30,000; that in September, 1883, Susan J. Thomas, his alleged widow, was, on her own petition, appointed administratrix of the estate, and that she duly qualified and settled such estate, and on the 7th of November, 1884, rendered her final account of her administration, and that on December 9, 1884, a final order was made by said county court, settling said estate, and assigning the whole thereof to said Susan J. The petition further states, substantially, that the said Susan J. was not the widow of said deceased, but falsely represented herself to be such widow in order to deceive the court and procure such final order; that, in fact, said Susan J. was in November, 1857, duly married to one Magee, in Ohio; that she came to Grant county in the year 1860, representing herself to be a single woman; that said Magee is still living, and that Susan J. was never divorced from him; and that said Susan J. died February 8, 1890. The petition also states that the petitioners had no knowledge of the marriage of Susan J. to Magee, and believed her to be a single woman when she married the deceased, and did not acquire such knowledge until after the death of said Susan J.; that said Susan J. died testate, bequeathing all her property to the respondents, and that her will has been duly proven; that said Joseph P. Thomas has duly qualified as executor thereof, and is now acting as such. The relief prayed is that the settlement of the estate of James be vacated and annulled, and that the executor of Susan J. account for all her estate, and pay it into court; and that an administrator of the estate of James be appointed to take charge of and resettle said estate. The defendants answered the petition by a general denial, except that they admitted Susan J.'s prior marriage to Magee, but alleged that she was duly divorced from him, before marrying James, by a decree of the court of common pleas of Lorain county, Ohio. As a separate defense the defendants also pleaded the proceedings and final order in the county court of Grant county in the matter of the settlement of the estate of James Thomas. Judgment was rendered against the petitioners in the county court of Grant county, from which they appealed to the circuit court of said county. The evidence in the circuit court showed substantially the following facts: That, for some years prior to 1865, James Thomas was an unmarried man, residing in Grant county, Wis., and that he continued to reside there until his death in July, 1883; that, in 1857, Susan J. Richmond, who afterwards married said James Thomas, was duly married to Lewis Magee in Cuyahoga county, Ohio; and that they lived together as husband and wife until some time in 1858, when they separated, and never thereafter lived together; that Susan J. continued to live in Ohio with her relatives until some time about the year 1860, when she came to Wisconsin, and lived for a time with one John White, her cousin, in Grant county, in the immediate neighborhood of the residence of James Thomas; that she was known when in Wisconsin by the name of Susan J. Richmond; that James Thomas commenced to keep company with her, and became engaged to marry her; that she returned to Ohio at some time prior to her marriage to James Thomas, and, while in Ohio, commenced an action for divorce against Lewis Magee, and procured a judgment of divorce by default at the October term, 1864, of the court of common pleas of Lorain county, Ohio; that she returned to Wisconsin June 7, 1865, and within two or three days thereafter was married to James Thomas, and lived with him as his wife in Grant county from that time until the death of said James Thomas; that said Lewis Magee was living at the time of the trial of this action, and had never obtained any judgment of divorce on his part; that James Thomas died July 18, 1883, without children or parents, leaving the petitioners, his brothers and sisters, as sole heirs at law, unless Susan J. was his heir by reason of being his lawful widow; that Susan J. instituted and prosecuted proceedings in the county court of Grant county, Wis., to settle the estate of said James, in which proceedings she represented that she was the lawful widow of said James, and that a final order was made in such proceedings, assigning to her the estate of said James, in December, 1884; that said Susan J., by her last will, devised the property received by her from James Thomas to the defendants, and that Joseph P. Thomas was appointed and duly qualified as executor of such will, and still is such. This proceeding was commenced by the filing of the petition in the county court of Grant county, January 10, 1891. The record of the divorce action and judgment in Ohio was offered and received in evidence; also certain sections of the statutes of Ohio, by which it appears that an applicant for a divorce must be a resident of the state at least one year next preceding the filing of the petition for divorce. There was a sharp contest in the evidence as to the time when Susan J. returned from Wisconsin to Ohio prior to her marriage with James. The respondents' testimony tended to show that she returned in 1862 or 1863, considerably more than a year before she made her application for a divorce in Ohio. The appellants' evidence, on the other hand, tended to show that she did not return to Ohio until 1864, a few months or weeks previous to the filing of her application for divorce. On this ground it was contended by appellants that the Ohio divorce was utterly invalid, and that Susan J. knew that fact. The circuit court made findings to the effect that the proceedings in the Ohio divorce suit were in accordance with the statutes of the state of Ohio, and that the Ohio court, having in that action determined that it had jurisdiction, and that said Susan Magee was a resident of the state of Ohio, and had been such for one year next preceding the commencement of said action, “this court will assume that such findings and determination of said court of common pleas of Lorain county, Ohio, was correct, and this court will not undertake to determine as an original question, upon the proofs adduced in this court, whether said Susan was or was not in fact a resident of the state of Ohio at the time of the commencement of such divorce suit, and for one year next prior thereto.” The circuit court also...