Opinion
November 7, 1951 —
December 4, 1951.
APPEAL from a judgment of the county court of Milwaukee county: M. S. SHERIDAN, Judge. Reversed.
The cause was submitted for the appellant on the brief of Raymond P. Dohr of Appleton, corporation counsel of Outagamie county, and for the respondent Marine National Exchange Bank of Milwaukee on the briefs of Miller, Mack Fairchild, attorneys, and Lynford Lardner, Jr., Joseph R. Barnett, and Jerome J. Klos of counsel, all of Milwaukee, and for the respondent Milwaukee county on the brief of William A. McCauley, district attorney, Oliver L. O'Boyle, corporation counsel, and Robert P. Russell, assistant corporation counsel.
Suzanne Petit Baldwin died February 21, 1950. A petition for the admission of her will to probate was made by her son, who stated therein that the deceased was a resident of the city of Milwaukee. The will was admitted to probate on March 2, 1950, by the county court of Milwaukee county and letters testamentary were issued to the Marine National Exchange Bank of Milwaukee. On June 14, 1950, a verified petition was filed by the executor of the estate asking for a determination as to her residence at the time of her death. Judgment was entered on February 23, 1951, adjudging that on the date of her death Suzanne Petit Baldwin was a resident of the city and county of Milwaukee, state of Wisconsin. Outagamie county appealed from that judgment.
The facts were stipulated as follows:
"1. Prior to her marriage to George B. Baldwin in 1928, Suzanne Petit Baldwin had been a resident of Milwaukee county for many years. After their marriage and until 1933 they maintained a home in Milwaukee owned by Mrs. Baldwin where Mrs. Baldwin resided during this period.
"2. From 1933 to 1939, Mr. and Mrs. Baldwin lived at Mr. Baldwin's home at Appleton, Outagamie county, Wisconsin, where Mr. Baldwin maintained an office and had most of his business connections. During that period, Mr. and Mrs. Baldwin kept no home in Milwaukee, although they spent long periods in Milwaukee at hotels and apartment hotels. Mrs. Baldwin stored her household goods in Milwaukee and retained all of her business, club, social, and church activities in Milwaukee. Mrs. Baldwin formed no such business or club, and few social connections in Appleton.
"3. In 1940, Mrs. Baldwin decided that she would again open a house in Milwaukee. Mr. Baldwin agreed. A house was rented in Milwaukee in 1940 and furnished with Mrs. Baldwin's furniture. Subsequently, different houses were rented, and then in 1946 Mr. and Mrs. Baldwin purchased in their joint names a home at 3014 North Shepard avenue, Milwaukee, Wisconsin, which house Mr. and Mrs. Baldwin were occupying at the time of her death in 1950. After 1940, Mrs. Baldwin visited Appleton only upon rare occasions and then only on daytime trips, except for the period in 1949 when Mr. Baldwin was sick and Mrs. Baldwin made several overnight trips to Appleton for the purpose of visiting him. During all this time Mr. Baldwin retained his house with a housekeeper, his business, his office, and legal residence at Appleton. Normally, he spent weekdays at Appleton and the week ends in Milwaukee.
"4. During the period from 1940 until Mrs. Baldwin's death, the following facts are noted:
"(a) Mrs. Baldwin's son and daughter of a prior marriage lived in Milwaukee.
"(b) Mrs. Baldwin's friends, and her social and club life were centered in Milwaukee, and she expressed to her friends on various occasions that it was her intention never to live in Appleton.
"(c) Mrs. Baldwin's extensive financial matters were handled exclusively at Milwaukee. Her agency agreement, her safe-deposit box, and her checking account, all with the Marine National Exchange Bank in Milwaukee, carried her address as Milwaukee.
"(d) Mrs. Baldwin's legal work was done exclusively in Milwaukee, including the preparation of her will.
"(e) Considerable property was owned by Mrs. Baldwin, including investments and real estate. The stock and bonds were all kept in Milwaukee and were handled through Milwaukee brokers, whereas Mr. Baldwin handled his investments entirely at Appleton. The real estate owned by Mrs. Baldwin in Milwaukee was a large apartment building. Mrs. Baldwin owned no real estate and had no business interest at Appleton, but she did own certain personal property which she kept at her husband's home in Appleton.
"(f) In 1940, Mrs. Baldwin applied to the Wisconsin motor vehicle division for a license and title for her newly purchased automobile. Her application gave her then Milwaukee address.
"(g) Mr. Baldwin applied for his wartime ration books at Appleton and brought down food coupons as needed to their Milwaukee home. Mrs. Baldwin, however, obtained her ration books at Milwaukee.
"5. At the time of the death of Suzanne Petit Baldwin, the legal residence of George B. Baldwin, her husband, was in Outagamie county, Wisconsin.
"6. The will of Suzanne Petit Baldwin, which is hereby made a part of this stipulation, refers on page one to `our house' at Appleton, and in the second codicil to her will to `our residence' in Milwaukee.
"7. The death certificate of Suzanne Petit Baldwin lists Milwaukee as the county of usual residence and states George B. Baldwin to be the informant.
"8. Mrs. Baldwin voted at Appleton after 1933 acting under the belief that that was the only place she could legally vote inasmuch as Appleton was the legal residence of her husband. In the years immediately preceding her death, Mrs. Baldwin voted in Appleton on:
August 13, 1946 November 5, 1946 April 6, 1948 November 2, 1948 (by absentee ballot April 5, 1949 from Milwaukee)"9. Mrs. Baldwin filed her Wisconsin income-tax returns in Milwaukee county up to 1933. During that year, and for every year thereafter, the preparation of her returns was undertaken by an accounting firm in Milwaukee which had for many years previous handled Mr. Baldwin's business and personal accounting and tax affairs. The accounting firm was advised by Mr. Baldwin that Mrs. Baldwin's returns should be filed at Appleton, and they were so filed every year up to Mrs. Baldwin's death. Mr. Baldwin acted under the belief that because his legal residence was in Appleton Mrs. Baldwin must file at Appleton. Mrs. Baldwin was aware that her returns were filed at Appleton, and such returns stated that her residence was in Appleton.
"10. Mrs. Baldwin's funeral was conducted in Milwaukee and her body was interred in St. Mary's cemetery at Appleton."
Under the common law a wife's residence follows that of the husband. That rule, however, has been deviated from in Wisconsin in divorce cases. In the case of Gray v. Gray, 232 Wis. 400, 287 N.W. 708, the husband moved to Chippewa Falls because of his work. His wife refused to move and remained in Eau Claire. After fifteen years of separation she sued for divorce from bed and board, but the court awarded the husband a divorce upon his counterclaim based on the grounds of desertion. It was determined there that the husband has the right to select the place where the family shall reside and if the wife unreasonably refuses to move with him to the place he selects, her conduct constitutes wilful desertion under the divorce statutes. Three years later, however, in the case of State ex rel. Ferebee v. Dillett, 240 Wis. 465, 3 N.W.2d 699, this court held that where the wife left the husband because of cruel and inhuman treatment she could establish a separate residence. In Lucas v. Lucas, 251 Wis. 129, 28 N.W.2d 337, this court held that the wife might acquire a separate domicile from that of her husband if his misconduct has given her cause for divorce.
This is the first case in which we have been asked to determine whether a wife, living with her husband on friendly terms, can acquire an independent residence with his consent. The question is important in this case because of the provisions of sec. 253.03, Stats., under which the county court has exclusive jurisdiction over the estates of "all persons deceased who were at the time of their decease inhabitants of or residents in the same county."
Under sec. 49.10, Stats., which deals with poor relief, a wife has the settlement of her husband if he has one within the state. There is a distinction between legal settlement for relief purposes and being an inhabitant or resident in a county. The language of that statute, therefore, is of no aid in determining the jurisdiction of the county court under sec. 253.03.
There is a conflict in the authorities in other jurisdictions where the question has been passed upon. As a matter of policy this would be a proper question to be acted upon by the legislature.
From the stipulated facts in this case we have determined that Suzanne Petit Baldwin, at the time of her death, was an inhabitant of and a resident in Outagamie county, Wisconsin. It seems clear from the stipulated facts that Mrs. Baldwin maintained a home in Milwaukee for her convenience. Her children lived in Milwaukee, her social and club life was centered in Milwaukee, and it was convenient, though not necessary, for her to transact business in Milwaukee. However, in dealing with statutory privileges and duties, such as voting and filing income-tax returns, Mrs. Baldwin recognized the city of Appleton as her residence. Those facts are controlling and require a finding that the deceased was a resident of the city of Appleton, Outagamie county, at the time of her death.
By the Court. — Judgment reversed and cause remanded with directions to enter a judgment in conformity with this opinion.
The following opinion was filed February 5, 1952:
The motion by Marine National Exchange Bank of Milwaukee for a clarification of the mandate is granted without costs, and the mandate is amended to read:
Judgment reversed and cause remanded with the following directions:
1. The Milwaukee county court to enter a judgment that the deceased, Suzanne Petit Baldwin, was a resident of Outagamie county, Wisconsin, at the time of her death.
2. The Milwaukee county court to certify and transmit the entire record of the probate proceedings in the estate of Suzanne Petit Baldwin to the county court of Outagamie county, Wisconsin, including the original will as filed and the transcript of all testimony taken in connection with the admission of that will to probate in Milwaukee county.
3. The Outagamie county court to accept the record of proceedings in Milwaukee county in the estate of Suzanne Petit Baldwin; to accept jurisdiction over the estate of Suzanne Petit Baldwin based upon the determination by this court of residence at the time of her death in Outagamie county, Wisconsin; and to accept and give effect to the petition for proof of will, waivers of notice of petition for proof of will, and affidavit of military service which were originally filed with the Milwaukee county court as if they had been originally filed with and directed to the Outagamie county court and contained a recitation that Suzanne Petit Baldwin died a resident of Outagamie county.
4. The Outagamie county court to render its independent judgment upon the admission to probate of the will transmitted from the Milwaukee county court based upon the record transmitted and such additional testimony or proof as that court may deem necessary; but, in the event said will is admitted to probate, to order the admission of the will to probate and to issue letters testamentary to the executor therein named, Marine National Exchange Bank of Milwaukee, nunc pro tunc as of March 2, 1950, and in that event also to accept and give effect to the consent of Marine National Exchange Bank of Milwaukee to act as executor of the estate of Suzanne Petit Baldwin, dated March 1, 1950, as if such consent had been originally directed to and filed with the Outagamie county court.