Will of Baldwin v. Outagamie County

50 N.W.2d 463, 260 Wis. 195, 1951 Wisc. LEXIS 273

• Court: Wisconsin Supreme Court
• Decided: December 4, 1951
• Status: Published

Opinions

Broadfoot, J.

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.