Thormann v. Frame

Joseph Fabacher died March 3, 1897, in the city of New Orleans, leaving a last will and testament dated October 29, 1896, in which he described himself as of Waukesha, Wisconsin, where the will was executed, and where he had a residence and a considerable amount of personal property. His widow and ten of his children were named as legatees and devisees. On March 27, 1897, A. J. Frame, appointed executor, presented the will for probate in the county court of Waukesha county, Wisconsin, alleging that it had been duly executed under the laws of Wisconsin, and that Joseph Fabacher was at the time of his decease 'an inhabitant of the said county of Waukesha.' Publication of the application was made according to law and the matter set for hearing May 4, 1897. On that day Antoinette Thormann, daughter of Fabacher by a prior marriage, appeared and objected to the admission of the instrument to probate, alleging herself to be, under the law of Louisiana, the sole heir of the deceased, and also setting forth matters which, it was contended, would by the law of that state disqualify the beneficiaries named in the will from taking under it, and averring, as to Joseph Fabacher, that 'continuously ever since 1843 up to and at the time of his death he, the said deceased, was domiciliated in the city of New Orleans, in the state of Louisiana, and an inhabitant and resident thereof, and that this court has no jurisdiction in the probate of said alleged last will and testament and in the settlement and distribution of said estate of said deceased.' She further charged that any attempt on the part of Fabacher to acquire or create a domicil at Waukesha was in fraud of her rights; that the will was procured by undue influence; and that it was not duly executed in the manner and form required by law. It was conceded that Fabacher's adult children resided in New Orleans, but insisted that the domicil of the minor children was in Wisconsin, and a guardian ad litem was appointed as to them. Trial was had in the county court, which held the will in all respects valid; that at the time of his death and some time prior thereto, Joseph Fabacher was domiciled in the county of Waukesha, state of Wisconsin; and that the will was entitled to probate.

The case was then carried to the circuit court of Waukesha county, and there tried before a jury, who returned a verdict sustaining the will and finding the domicil of Joseph Fabacher at the time of his death, March 3, 1897, to have been at the city of Waukesha, whereupon the circuit court made findings of fact and conclusions of law, and entered judgment admitting the will to probate and affirming the judgment to that effect of the county court. A large amount of testimony was introduced on these trials, and, among other things, it appeared that on March 29, 1897, Antoinette Thormann petitioned the civil district court for the parish of Orleans, Louisiana, to be appointed administratrix of the succession of Joseph Fabacher, her father, asserting that he 'was at the time of his death and many years before a citizen of Louisiana, domiciled and residing in the city of New Orleans; that said deceased left property in this city, and within the jurisdiction of this honorable court,' and 'that your petitioner is the sole surviving heir and legitimate child of said deceased, issue of his marriage with petitioner's mother. . . .' Letters of administration were granted by the court April 30, 1897.

The inventory stated the property of deceased as 'one marble tomb in lot situated in St. Joseph cemetery, No. 2, bearing the inscription, 'Family of Joseph Fabacher;' also two (2) galvanized iron sofas and five (5) vases, valued by said appraisers at the sum of thirty-five hundred dollars ($3,500).' An attempt was made to inventory some household effects, which, however, were claimed as the property of one of the sons.

From the judgment of the circuit court of Waukesha county an appeal was taken to the supreme court of Wisconsin, the judgment affirmed, and the record remanded to the circuit court. 102 Wis. 653, 79 N. W. 39. A writ of error having been sued out from this court, motions to dismiss or affirm were submitted.

Messrs. E. Howard McCaleb and William A. Maury for plaintiff in error.

Messrs. Charles F. Buck, D. S. Tullar, and T. E. Ryan for defendants in error.

Mr. Chief Justice Fuller delivered the opinion of the court: