Zahorka v. Geith (In re Geith's Estate)

• Decision Date: 07 November 1906
• Citation: 129 Wis. 498,109 N.W. 552
• Parties: IN RE GEITH'S ESTATE. ZAHORKA ET AL. v. GEITH.
• Court: Wisconsin Supreme Court

129 Wis. 498

109 N.W. 552

IN RE GEITH'S ESTATE.

ZAHORKA ET AL.

v.GEITH.

Supreme Court of Wisconsin.

Nov. 7, 1906.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

In the probate of the will of Carl Geith, deceased, questions were raised by Maria Zahorka and others against the rights of Hermine Geith. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.Lenicheck, Fairchild & Boesel and John J. Vlach, for appellants.

Nohl, Nohl, Poss & Mangan, for respondent.

CASSODAY, C. J.

In the matter of admitting to probate the last will and testament of one Carl Geith, deceased, the question arose whether the defendant was the wife of the testator at the time of his death, and hence whether she was entitled to the rights given to her as widow by the statute. The county court on February 7, 1905, found as matters of fact that at the time of the testator's death the defendant was his wife, and thereupon adjudged that as his widow she was interested in the matter and a statutory heir at law of said deceased; and the same was thereby declared to be fully and finally established in said matter. Thereupon the legatees and devisees named in said will and heirs at law of said deceased appealed from such judgment of the county court to the circuit court, whereupon the question whether the defendant was the wife of the testator was retried in the circuit court, and at the close of the trial, and on December 8, 1905, that court found as matters of fact, in effect, that at the time of the testator's death the defendant was his wife, and as his widow was and is an interested party in the probate of such will, and that the case involves the determination as to whether the defendant is the statutory heir of said deceased, and as conclusions of law the circuit court found, in effect, that the defendant was the lawful widow and statutory heir at law of said deceased and an interested party in the matter of said estate, and her heirship and interest was thereby declared to be fully and finally established, and the order and judgment of the county court was therein and thereby confirmed in each and every respect, and that the defendant was entitled to costs and disbursements against such devisees and their sureties, and ordered judgment to be entered accordingly. From the judgment so entered, the heirs at law and legatees and devisees named in said will bring this appeal.

The decision of the case turns upon the question whether the defendant was divorced from her former husband before she married the testator. It appears from the record, and is undisputed, that in or about 1870 the defendant married one Aschback, who died soon after; that March 15, 1872 or 1873, the defendant married one Edward Baehr in Germany; that in 1885 the defendant left Baehr and came to the United States, where she has since resided; that June 17, 1890, the defendant began an action for divorce against Baehr in the circuit court on the ground of willful desertion; that June 18, 1890, the sheriff returned the summons that the defendant therein, Edward Baehr, could not be found; that June 21, 1890, an order was obtained from Judge Johnson in such divorce action for the service of such summons by publication; that August 18, 1890, the defendant went through the form of marrying the testator, but there is no claim that such marriage was valid; that on September 6, 1890, the following action by the circuit court, in effect, was taken and entered of record in the divorce action, that the plaintiff, Hermine Baehr, now comes “by her attorneys, and no one appearing for the defendant,” Edward Baehr, “he being in default, upon proofs taken in open court, judgment is ordered for plaintiff and against defendant.” December 8, 1894, the defendant in this action was married to the testator.

Some time in 1903 the defendant had trouble with the testator and left him. November 10, 1903, the testator executed a will in which he stated in effect that he had married the defendant as his second wife, but that at the time of such marriage she had another husband living in Germany, and hence that his marriage to the defendant was null and void, and that she had left him, and consequently he was at liberty to dispose of his property to his children and grandchildren as therein expressed. April 15, 1904, the testator died, leaving children by his first wife and grandchildren by some of his deceased children. May 16, 1904, there was filed in the divorce action an affidavit duly verified by John M. Clarke, one of the attorneys of record, for Mrs. Geith, the plaintiff in that action, wherein it was stated in effect that on June 21, 1890, he, as such attorney, deposited in the post office in Milwaukee a copy of the summons and complaint on file in that action, securely inclosed in an envelope, the postage duly paid thereon, addressed to the said Edward Baehr at his post office at Stargard, Pomerania, Germany, and left the same there to be carried without any direction to the postal officers upon such wrapper for the return thereof in case of nondelivery to the person addressed; that the said Clarke therein stated that he was informed and verily believed that before September 6, 1890, he duly filed with the clerk of said circuit court a proper affidavit, showing such service by mailing; and that before September 6, 1890, the said EdwardBaehr was duly and properly served by publishing the summons and by mailing the summons and complaint as above stated, all in accordance with the order of the court in the divorce action. May 19, 1904, an order was made by the court and entered in said divorce action, which, with the recitals therein, is as follows: “Upon the records and files in the above-entitled action, Nohl & Nohl appearing as attorneys for the plaintiff, no one appearing to oppose, on the testimony of plaintiff and other witnesses taken in open court May 16 and May 18, 1904, in addition to the proofs of the allegations of the complaint heretofore taken in open court before this court, it satisfactorily appearing from such testimony, proof, and the orders heretofore made in the above-entitled action that the summons and complaint in the above-entitled action have been duly served on the above-named defendant, and that no answer or demurrer to the complaint has been served on the plaintiff or any person representing her as attorney; that due proofs of service of such summons and complaint on the defendant have been made; that the allegations set forth in the complaint have been duly proven; that the plaintiff has resided in the state of Wisconsin more than one year immediately preceding the commencement of the above-entitled action; that the defendant has been guilty of willful desertion of the plaintiff for more than one year immediately preceding the commencement of this action, and has failed to support the plaintiff for a period of five years immediately before the commencement of this action and ever since, the action having been submitted to the court, now upon motion of Nohl & Nohl as attorneys for the plaintiff, it is ordered that the marriage contract existing between the plaintiff and the defendant be, and hereby is, dissolved, and said plaintiff, Hermine Baehr, and said defendant, Edward Baehr, be, and they hereby are, forever divorced from the bonds of matrimony and freed from the obligations thereof nunc pro tunc as of the 6th day of September, 1890. Let judgment be entered accordingly.”

Thereupon, and on said May 19, 1904, judgment was entered in said divorce action, as follows: “This action having been at issue and having been heard before the above-named court, and the order of the court having been made and entered wherein and whereby the court orders judgment for the plaintiff and against the defendant, now upon motion of Nohl & Nohl, attorneys for the plaintiff, it is hereby adjudged and decreed that the marriage contract existing between the plaintiff and the defendant be, and hereby is, dissolved, and it is further adjudged and decreed that said Hermine Baehr, and said defendant, Edward Baehr, be, and they hereby are, forever divorced from the bonds of matrimony and freed from the obligations thereof in nunc pro tunc as of the 6th day of September, 1890. By the court, A. A. Wieber, clerk.”

1. The claim on the part of the defendant that the notice of appeal to this court is insufficient and gives no jurisdiction because it is not in form directed to the clerk of the circuit court, as well as her attorneys, is without foundation. The section of the statute relied upon does not require that it should be so directed, but simply that such notice shall be served “on the adverse party and on the clerk of the court in which the judgment or order appealed from is entered.” Section 3049, Rev. St. 1898. The notice in question was duly filed with the clerk, and must, therefore, be deemed to have been served upon him. There is no claim that it was not duly served on the defendant's attorneys; so the claim made under section 4013 of the statutes, that the circuit court did not get jurisdiction because on the appeal from the...