Opinion
November 8, 1940 —
December 3, 1940.
MOTION for leave to file a petition for writ of prohibition and for declaratory judgment. Motion denied as to relief prayed for. Alternative writ of mandamus issued.
Ela, Christianson Ela of Madison, and Arthur H. Bartelt of Austin, Texas, for the petitioner.
John B. Fleming and W. H. Frawley, both of Eau Claire, and Holmes Shuttleworth of Madison, for the respondents.
The petition upon which the aforesaid motion is based, among other things, shows that petitioner is the surviving husband of Mary Cousins Joyce, who died at San Antonio, Texas, January 14, 1936, leaving surviving her husband and Marshall Cousins, a brother, who died on March 10, 1939; that the deceased Mary Cousins Joyce and petitioner were, on January 14, 1936, and for several years prior thereto, citizens and residents of the state of Texas, residing in the city of San Antonio, Bexar county; that said Mary Cousins Joyce left a last will and testament bearing date of October 15, 1935; that said will created a trust fund for the personal protection and welfare of the petitioner and the said Marshall Cousins; that John W. Scott and Percy C. Atkinson of the city of Eau Claire, Wisconsin, were both the executors and the trustees named in said will; that as such trustees they are, by the terms of said trust, directed to pay over to petitioner and to the said Marshall Cousins during their lifetimes, the amount of the interest and income of the trust at regular monthly intervals, and further directed that in the event the interest and income of the trust fund be insufficient, in the discretion of the trustees, to meet the necessary support expense of petitioner and said Marshall Cousins, then, and in that event, said executors and trustees are directed that so much of the principal be expended as may be necessary.
The will of said Mary Cousins Joyce was admitted to probate in the county court of Eau Claire county, Wisconsin, on May 19, 1937, and letters testamentary were issued on the same date to said John W. Scott and Percy C. Atkinson. On July 25, 1938, Scott and Atkinson, as executors and trustees, filed an application in the county court of Bexar county, Texas, for the probate of said will, to be ancillary to the proceedings had in the county court of Eau Claire county, Wisconsin. Petitioner filed objections in the purported ancillary proceedings in the county court of Bexar county to the jurisdiction of that court, on the ground that the county court of Eau Claire county had no jurisdiction other than in ancillary proceedings to the domiciliary court in Bexar county, Texas. The latter court sustained petitioner's objections and dismissed the application of Scott and Atkinson for ancillary proceedings in that court. Thereafter, on November 1, 1938, Scott and Atkinson, as executors and trustees, made application to the county court in probate of Bexar county to probate the will of said Mary Cousins Joyce of October 15, 1935, and a purported will of the said Mary Cousins Joyce bearing date of January 14, 1936, was offered for probate by other parties. By stipulation of all the parties, the two applications, that is, the application made by Scott and Atkinson to admit to probate the will of October 15, 1935, and the application of the other parties for the probate of the alleged will of January 14, 1936, were heard together on August 9, 1939, and on August 19, 1939, the court rendered its decision in which it found that the will of January 14, 1936, was not a valid will. The court further found that the will of October 15, 1935, was the last will of said deceased and ordered that same be admitted to probate, whereupon an appeal was taken to the district court which said district court, on December 15, 1939, affirmed the decision and findings of the county court. No appeal has been taken from the order and judgment of said district court, and the record in said cause has been returned to the county court in probate of Bexar county, in which court proceedings in the probate of the will of October 15, 1935, are now pending.
It appears from the petition herein that on January 29, 1939, petitioner filed, in the county court of Eau Claire county, Wisconsin, a plea in abatement to the jurisdiction of that court on the ground that the said Mary Cousins Joyce, at the time of her death, and for many years prior thereto, was a citizen of the state of Texas, residing at San Antonio in Bexar county, and that at the time of the filing of the petition herein (October 4, 1940), said county court of Eau Claire county had made no decision on petitioner's plea in abatement.
It further appears that Mary Cousins Joyce at the time of her death owned certain real estate located in Eau Claire county, and that she also owned certain real estate in Bexar county. The petitioner alleges that he is seventy-eight years of age, unable to work, and is entitled to receive, from month to month, his support money from the trust fund left to the trustees, hereinbefore mentioned, for that purpose. The trust further provides that upon the decease of the petitioner and the said Marshall Cousins, the principal of the trust fund and all earnings or accumulations then remaining unpaid in the hands of said trustees or their successors in trust, after deducting the expenses incident to the trust, be paid over and distributed to the Wisconsin State Historical Society, Madison, Wisconsin.
The State Historical Society of Wisconsin has moved to quash and dismiss the petition and application for a writ of prohibition and for a declaratory judgment, and further, that all proceedings under the petition be dismissed. Said State Historical Society has also made answer to the petition writ of prohibition and declaratory judgment.
We will not now discuss or decide the question of the jurisdiction of the county court of Eau Claire county to probate the estate of the deceased Mary Cousins Joyce. That issue is raised on the petitioner's plea in abatement which was filed in the county court of Eau Claire county on January 29, 1939, and which has not yet been decided by that court.
The law is well settled in this state that a writ of prohibition will not be issued where there is an adequate remedy by appeal or otherwise. State ex rel. Meggett v. O'Neill, 104 Wis. 227, 80 N.W. 447; State ex rel. Tewalt v. Pollard, 112 Wis. 232, 87 N.W. 1107; State ex rel. Milwaukee E. R. L. Co. v. Circuit Court, 134 Wis. 301, 114 N.W. 455; Petition of Pierce-Arrow Motor Car Co. 143 Wis. 282, 127 N.W. 998.
The prayer for a declaratory judgment cannot be considered at this time as all the parties in interest have not been made parties to the action. See sec. 269.56 (11), Stats. The executors and trustees are interested parties. The only parties now before the court are the petitioner and the Hon. MERRILL R. FARR, as county judge in probate of Eau Claire county. The State Historical Society apparently has appeared because of its interest in the residue of the trust fund.
However, the petitioner has certain rights which should be determined without further delay. He is entitled to a decision by the county court of Eau Claire county on his plea in abatement to the jurisdiction of that court. If the decision is adverse, he has a right of appeal to this court from the order overruling the plea. The wisdom of the saying that justice delayed is justice denied is applicable here. This court is not without power in the premises. The superintending or supervisory control by this court over inferior courts was considered and fully discussed in the recent case of Petition of Heil, 230 Wis. 428, 284 N.W. 42. In State ex rel. Fourth Nat. Bank of Philadelphia v. Johnson, 103 Wis. 591, 623, 79 N.W. 1081, the court said:
"Where it clearly appears that discretion has been not merely abused, but not exercised at all, or that the action taken by the inferior court is without semblance of legal cause, and no other adequate remedy exists, mandamus will lie to compel the specific action which should have been taken."
The necessary facts appearing, the writ may be issued by this court upon its own motion. In the instant case, upon the showing made, we hold that the petitioner is entitled to an alternative writ of mandamus commanding the Hon. MERRILL R. FARR, as county judge in probate of Eau Claire county, Wisconsin, to decide the question of jurisdiction raised by the petitioner's plea in abatement now on file in said court within ten days from the date of service of a copy of said writ upon him, or show cause before this court on the 16th day of December, 1940, why he has not complied with the writ, and until the hearing and final disposition of the question or questions raised by the plea in abatement, all further proceedings in connection with the administration of the estate of Mary Cousins Joyce in the county court of Eau Claire county, Wisconsin, shall be stayed.
By the Court. — Motion for writ of prohibition and for declaratory judgment denied. An alternative writ of mandamus may issue.