Estate of Read v. Baker

195 Wis. 128 | Wis. | 1928

Crownhart, J.

It is a general rule in the states of the Union that a will is to be probated at the domicile of the testator at the time of death. 2 Schouler, Wills (5th ed.) §§ 1001a et seq., 1055, 1091, 1092; Page, Wills, §315; Thompson, Wills, § 487; 28 Ruling Case Law, 364; Will of Eaton, 186 Wis. 124, 202 N. W. 309.

The jurisdiction of the county court was challenged on the ground that the testatrix, at the time of her death, was not a resident of Fond du Lac county nor of this state. It was the duty of the court to thereupon ascertain the fact, and if the fact appeared that testatrix was a nonresident of this state at her death, proceedings in the probate of the will should have been dismissed.

It is the contention of the respondent that the county court had jurisdiction by virtue of sec. 253.03, Stats., which reads in part as follows:

. “The jurisdiction of the county court shall extend to the probate of wills and granting letters testamentary and of administration on the estates of all persons deceased who were at the time of their decease inhabitants of or residents in the same county and of all who shall die without the state having any estate within such county to he administered, and to any other cases authorized by law. ...”

It is claimed that the phrase emphasized applies to all persons who die testate without the state having any estate within said county to be administered. That construction of the statute is not permissible. The statute gives jurisdiction to prohate wills and administer estates. Probate of wills of persons extends only to such as were inhabitants or residents of the county at the time of their death, and jurisdiction is given to probate estates of all who die intestate who are inhabitants or residents of the county at their death, and to all who die without the state having any estate to be administered. While the language of the statute is somewhat ambiguous, the intent is plain, and we entertain no doubt as to the meaning.

The rule of Will of Eaton, 186 Wis. 124, 202 N. W. 309, governs this case. The petition alleged residence of testatrix in Fond du Lac county, and was such as to give the county court jurisdiction to ascertain the fact of residence. The court should have ascertained that fact preliminary to any further proceedings.

By the Court. — The order of the county court is reversed, with directions to proceed in accordance with this opinion.