Wells v. Chase

• Decision Date: 14 November 1905
• Citation: 105 N.W. 799,126 Wis. 202
• Parties: WELLS v. CHASE.
• Court: Wisconsin Supreme Court

126 Wis. 202

105 N.W. 799

WELLS

v.CHASE.

Supreme Court of Wisconsin.

Nov. 14, 1905.

Appeal from Circuit Court, Winnebago County; Geo. W. Burnell, Judge.

Contest over the will of Lucy A. Smith, deceased, by Marcia Wells, as proponent, against Mildred Chase. From a judgment admitting the will to probate, contestant appeals. Affirmed.

An instrument purporting to be the last will and testament of Lucy A. Smith, deceased, was admitted to probate in the county court of Winnebago county, and upon appeal to the circuit court the decision was affirmed. The objections to the admission of the will to probate are, in effect, that Lucy A. Smith, at the time of her death, was a resident of Fond du Lac county, and died in the city of Fond du Lac May 25, 1904; that the will was conditioned and contingent upon the death of said Lucy A. Smith on her journey from California; and that she did not die on such journey. The will is holograph, and was executed at Los Angeles, Cal., April 18, 1904. Marcia Wells, a sister, was given $500 and the life insurance, out of which she was directed to pay the funeral expenses. Molly Freeman and Alice Evans, sisters of deceased, were each given $100, and the household goods divided among relatives. Request was also made for a monument not to exceed in cost $200. Mildred Chase was named as residuary legatee. The will recited: “This will is made in case I die on my journey home from California.” Mayhew Mott, of Neenah, Wis., is named as executor.

The circuit court found the following facts: “(5) That prior to the year 1881 the said Lucy A. Smith resided at the city of Neenah in her own homestead, which she retained, resided in, and rented until some time in September, A. D. 1902; that from the year 1881 to about the 1st day of April, 1902, the said Lucy A. Smith resided at the city of Appleton with her son, Leonard Smith. (6) That on or about the last day of April, 1902, she abandoned her residence at Appleton aforesaid, and, sending some of her household furniture to her brother Samuel Wells, at the city of Fond du Lac, Wis., went to and remained at the city of Neenah until about the 1st day of June, 1902, inquiring for rooms, and with the intention to make her permanent domicile at said city of Neenah as soon as a suitable home for her could be secured. (7) That, failing for the time to find such home at Neenah, Wis., she, on or about the 1st day of June, 1902, occupied a room in the house of her said brother, Samuel Wells; but such was temporary, and without intention to make her legal domicile at the said city of Fond du Lac. (8) That at no time did she occupy a room or reside at Fond du Lac with intention to make her permanent home there. (9) That nearly half of the time after leaving the city of Appleton and before going to California, in the year 1903, was spent by her in said city of Neenah, residing with her relatives and inquiring for a suitable place of permanent residence. (10) That her husband, her son, and other of her relatives, with herself, are buried at the city of Neenah in the family burial lot. (11) That she became a member of the Union Baptist Church of said city of Neenah, and so remained until her death. (12) That all of her statements, oral and in writing, show an intention on her part to make her home at Neenah, Wis., and not at Fond du Lac, Wis.”

The appellant assigns as error the admission of improper evidence, admission of the testimony of Mary Wells and May Freeman taken on former trial, the finding to the effect that the legal residence and domicile of deceased at the time of her death was Neenah, and in affirming the judgment of the county court and admitting the will to probate.Alden, Latham & Young (Phillips & Hicks, of counsel), for appellant.

Wesley Mott, for respondent.

KERWIN, J. (after stating the facts).

1. Objection was made to the testimony of Marcia Wells, proponent, and May Freeman, as to declarations of the testatrix, and their testimony admitted over such objection; and this, it is claimed, was error, on the ground that the witnesses were interested and therefore their testimony not admissible, under section 4069, Rev. St. 1898. But the objection was to the competency of the evidence, and not to the competency of the witnesses to testify. The objection, therefore, was not sufficient to exclude the evidence. McCormick v. Herndon, 67 Wis. 648, 31 N. W. 303.

The most important assignment of error concerning the admission of evidence is that respecting the admission...