The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1913-10-30
COURT FIXES DIVORCE STATUS
In Decision He Asserts That 1t Was
the Clear Intent of the Wife to Give
Her Property to a Real Husband
and Not to Technical One.

Judge e. B. Belden or Tuesday af-
ternoon handed down q decision in the
very interesting case brought to this
court from Walworth county as an APP
peal from the decision Of the county
court in naming Fred L. Rogers as
executor of the last will and testament
Of his divorced wife, Martha Alice
Rogers.
In his decision Judge Belden holds
that Rogers may not be executor of
the estate on account Of the fact that
at the time of the death Of Mrs. Rogers
he was not her "real'' husband. The
will provided that Rogers receive the
estate and be named as executor Of the
will provided he was the husband of
the deceased at the time of her death.
The attorneys for Rogers held that the
fact that the divorce granted to Rogers
was in fact an interlocutory decree,
not valid until after year had passed
and the fact that Mrs. Rogers died be-
fore the end of this year, made Rogers
able to satisfy all the provisions of the
will. In disposing of the case Judge
Belden says:
There is no question ia sy kiiad
that the testatrix intended that if at
the time Of her death Fred Rogers was
then her real husband, between whom
and herself the usual and ordinary
marriage relations and responsibilities
existed, then, and In that case only,
should he be the executor of her will.
The pending divorce proceedings were
in her mind when she made this will
and I am quite unable to understand
that she meant otherwise or that she
can be said to have conceived of the
possibility Of his beneftting by her
will should he be merely her technical
husband at the time. / think any hold
ing to be contrary and any technical
construction as to the legal status Of
these parties during the year follow
ing the entry of the Judgment which
would have contrary effect, would do
violence to clear testamentary in
tention.
The testatrix meant her real husband
|
not a technical or technically legal
husband. | think there can be no
doubt as to the intention Of the testa-
trix in this regard, and that being as
ce-tained, must control
Sectio 1892 r. S. provides that
* Wien will shall have been duly
proved and allowed the county court
sh9 | issue letters testamentary there
Gu to the person named executor there
in, # he is legally competent ~
Whether my view of the effect Of the
Judgment as to the technically legal
status of the parties during the year
following its entry be correct OF. not is,
think, not very material to this con-
sideration. My Interpretation Of this
matter is that at the time of the death
of the testatrix, Fred L. Rogers did
not meet the description of the person
| whom she said should be the executor
of he. will and that under the desig-
mated testamentary conditions he is
moi eligible or legally competent" so
as to entitle him TO appointment as
such executor. No personal unftness
or incompetency to be such executor is
suggested other than the Interpretation
of the intention of the testatrix here
in upheld.
With the utmost respect for the
opinion Of the learned judge Of the
county court, am unable to view the
matter as he did.S'