Opinion
February 5, 1964 —
March 3, 1964.
APPEAL from an order of the county court of Dane county: CARL FLOM, Judge. Affirmed.
For the appellant there was a brief by Riley Pierce, and oral argument by Michael B. Torphy, Jr., all of Madison.
For the respondents there was a brief by Ted C. Boyle, F.D. Shuttleworth, and William E. Johnson, all of Madison, and oral argument by Mr. Boyle and Mr. Johnson.
This is a will contest in which the appellant, Elizabeth J. Hydanus, contends that the trial court erred in denying probate to a will dated June 21, 1961, as the last will and testament of Katherine A. Culver. Mrs. Hydanus was the principal beneficiary under this will. One of the respondents, Albert P. McMahan, is a brother of the testatrix. Another respondent is Iona Gorst, the general guardian of Mary Higgins, an incompetent; Mary Higgins is a sister of the testatrix.
Katherine A. Culver died at the Dane County Hospital on January 20, 1962, leaving an instrument dated June 21, 1961, propounded as her last will and testament. The petition for probate of such instrument as her last will and testament was filed with the court on January 23, 1962. Objections to the probate of the will were filed by Albert P. McMahan and by Iona Gorst.
After the death of her husband, George Culver, in March. 1960, Katherine Culver lived alone on the first floor of the home located in the city of Madison. Mrs. Culver was eighty-four years old. She suffered from arteriosclerosis and was frequently hospitalized for that ailment.
Katherine Culver left an estate estimated at $30,000. In the will dated June 21, 1961, she made the following distributions:
$300 to Marie Schambab; $300 to Katherine Schmits, and $300 to Phrone McMahan, daughter and widow, respectively, of a deceased brother, Michael McMahan.
$300 to Rosia Gorst, a sister.
$1 to all other brothers and sisters.
$1,000 to St. Raphael's Cathedral.
$1,000 to Elizabeth "Hydanus in trust for Masses.
All the rest and residue to Elizabeth Hydanus.
Decedent left four brothers and three sisters surviving and also 12 nephews and nieces, children of two deceased sisters and one deceased brother, as her heirs-at-law.
The objections to the admission to probate were based on these claims:
1. That decedent at the time of the execution of said instrument was not of sound mind and had not sufficient mental capability to make a will, and
2. That the execution thereof was procured by undue influence exercised over and upon decedent by Elizabeth Hydanus.
Elizabeth Hydanus is a resident of Prairie du Chien where, for the past three years, she and her husband have operated a collection service. Prior to this, they had operated a shoe store in Dodgeville. Mrs. Hydanus had not lived in Madison since 1941. Mrs. Hydanus was acquainted with Mrs. Culver, but had seen her only about eight or 10 times since 1941.
In May, 1961, Mrs. Hydanus came to Madison and stayed at the home of some neighbors of Mrs. Culver; this brought about a visit to Mrs. Culver's home. On learning that Mrs. Hydanus expected to be in Madison on other occasions medical treatment, Mrs. Culver invited her to stay with her. About two weeks later, Mrs. Hydanus did stay with Mrs. Culver, and then she did so again on June 15, 1961.
On June 16, 1961, Mrs. Hydanus called Attorney John L. Riley to come to the home of Mrs. Culver for the purpose of discussing the drafting of a will for Mrs. Culver. He had not previously met either Mrs. Hydanus or Mrs. Culver. Mrs. Hydanus met Mr. Riley at the door and introduced him to Mrs. Culver. When Mr. Riley started to discuss the proposed will, Mrs. Hydanus left the room.
Mr. Riley testified that he examined Mrs. Culver thoroughly because she desired to leave a considerable sum to a person other than an immediate relative, i.e., Mrs. Hydanus. Although Mr. Riley was of the opinion that decedent had proper testamentary capacity, he was concerned and attempted to telephone her brother and did in fact telephone her doctor. He drafted the will according to the directions given him by Mrs. Culver and then turned it over to his associate, Attorney Humphrey J. Lynch, for execution.
When Mr. Lynch arrived at the Culver home with his secretary, Miss Fischer, on June 16, 1961, Mrs. Culver informed him that she wished to include a bequest to her sister, Rosia Gorst. Mr. Lynch returned to his office, dictated the changes to his secretary and later returned to the Culver home. That will was then executed.
On June 21, 1961, Mrs. Hydanus called Mr. Lynch to inform him that Mrs. Culver decided on some changes in her will. She told him that Mrs. Culver wished to make a bequest of one dollar to her brothers and sisters not mentioned in the will. Mr. Lynch drafted a new will in accordance with the information given him by Mrs. Hydanus and took it to Mrs. Culver's home to be executed.
Mr. Lynch testified that he made observations as to Mrs. Culver's competency and concluded that she was mentally competent, understood the provisions of her will, and knew what the disposition of her property would be when she died. Both Mr. Lynch and Miss Fischer testified that Mrs. Culver read the document. There was considerable testimony that Mrs. Culver could not see sufficiently well to read. The trial judge was satisfied, however, of the proper execution of the instrument.
Attorney Vernon L. Peterson probated the estate of the husband, George Culver. Mr. Peterson preferred the appointment of Mr. Culver's brother, Elmer Culver, as administrator of George's estate, because of Mrs. Culver's advanced age and the difficulty in dealing with her. He expressed the opinion that Mrs. Culver was competent to make a will and that she did in fact discuss the provisions of a will with him.
Dr. Robert H. Straughn, Mrs. Culver's physician, gave his professional opinion that the testatrix generally knew what she was doing. However, he also stated that she was very difficult to handle and that when he saw her in September, 1961, she was suffering from paranoia. He had not seen the testatrix from approximately April, 1961, until September, 1961. There was no medical testimony as to the precise mental condition of the testatrix at the time the will was executed on June 21, 1961.
There was testimony that Mrs. Culver indicated at the time of the preparation of the will that she did not want her relatives to share in her estate. To her are attributed the comments that her relatives had not done anything for her, that some of her brothers had been arrested for drunkenness, and that if her brothers were to receive any part of her estate they would soon waste it.
There was testimony that Mrs. Culver was extremely penurious. She often had little food in her home, and frequently such food as she had was spoiled. She wore old clothes and even wore the underclothing of her deceased husband. From such demeanor, the trial court opined that by comparison to Mrs. Culver's miserly mode of living, a normal standard of living would appear to be extravagant.
There was evidence that Mrs. Culver believed that she received visits from her deceased husband. She also exhibited on occasion great rage and made threats of injury to her friends and relatives. Mrs. Culver accused certain named individuals, who were in some cases close friends and relatives, of stealing from her. On other occasions, she made vague statements that "they" were stealing from her.
The court below found, in contradiction to the expressions attributed to the testatrix, that her family was a normal, close family and that they were solicitous of her, assisted her in various ways and cared for her when she was sick. There also was evidence that her relatives bore her no ill will in spite of the fact that she accused them of various misdeeds.
Mrs. Hydanus on occasion purchased alcoholic beverages for Mrs. Culver and drank with her. There was testimony from the wife of Dean McMahan, the nephew of the testatrix, that Dean McMahan had refused to purchase such beverages for the testatrix.
Mrs. Hydanus took possession of the will of which she was the beneficiary. Mrs. Culver also executed a power of attorney to Mrs. Hydanus. Dr. Straughn testified that Mrs. Hydanus showed him a document signed by Mrs. Culver and requested his opinion as to whether such a document would stand up in court. The exact nature of the document is not established, but the trial court was of the belief that it was a quitclaim deed in favor of Mrs. Hydanus.
The trial court held that the will of June 21, 1961, could not be admitted to probate on the grounds that (1) the will was affected by the insane delusions of the testatrix, and (2) the will was the result of undue influence exercised over and upon the decedent by Elizabeth Hydanus.
Mrs. Hydanus brings this appeal, contending that the trial court erred in failing to admit the will to probate.
The objectors proved by clear, satisfactory, and convincing evidence that the will of Katherine Culver was the result of undue influence. The objectors proved the presence of the four elements referred to in Will of Freitag (1960), 9 Wis.2d 315, 317, 101 N.W.2d 108. In addition, we believe that the finding of the trial court that Mrs. Culver was under insane delusions at the time she executed her will is not against the great weight and clear preponderance of the evidence. Accordingly, it follows that the order of the county court sustaining the objections and denying probate of the will must be affirmed.
That Mrs. Culver was susceptible to undue influence is fully supported by the record. She was eighty-four years of age and suffering from arteriosclerosis. She had been hospitalized on three occasions during the six months immediately preceding the execution of her will (December 10, 1960, to January 1, 1961; March 11, 1961, to March 22, 1961; April 23, 1961, to April 28, 1961). Shortly after the execution of her will, she was again hospitalized (September 8, 1961, to September 28, 1961).
Dr. Straughn testified that she was suffering from paranoia in September, 1961, although he was not able to designate her precise condition at the time the will was drafted in June, 1961. The doctor described her mental competency as a "variable picture" and added that he "couldn't be sure that she was competent." However, Dr. Straughn did testify that "she might indicate competency at times."
Mrs. Culver's husband died in 1960, and her condition deteriorated thereafter. Some of her characteristics could be described as the frequent concomitants of growing old. However, other aspects of her demeanor suggested abnormal mental and physical decline. Mrs. Culver was exceedingly careless about her nutrition; what little food she kept in the house was spoiled. She attired herself in an unseemly fashion. She adopted a penurious standard of living. She claimed that she had visits from her deceased husband. She expressed the opinion that her close relatives were stealing from her. The testimony raises serious doubts as to her ability to read during the period surrounding the time she executed her will.
To contradict the existence of any susceptibility to influence, the proponent of the will points to the obstinancy which Mrs. Culver exhibited in connection with her previous refusal to make a will and her steadfast unwillingness to move to a nursing home.
From all the testimony, we think it is clear that Mrs. Culver's general deterioration had allowed her to become susceptible to undue influence. Judge FLOM'S finding to such effect is generously supported by the testimony.
Mrs. Hydanus was in a position to have exercised improper influence upon Mrs. Culver, and the record establishes that she had a disposition to do so. Although Mrs. Hydanus had seen Mrs. Culver on only eight or 10 occasions between 1941 and 1960, she stayed with her on June 15 and 16, 1961, and again on June 20 and 21, 1961. She was personally present on both occasions when Mrs. Culver executed wills in June, 1961. It was Mrs. Hydanus who arranged for the presence of the attorney who prepared the will, and also Mrs. Hydanus took possession of the will after its execution. Further, she procured a power of attorney from Mrs. Culver, even though Mrs. Hydanus lived in Prairie du Chien and would not be readily available to function as an agent for Mrs. Culver, whose home was in Madison.
The trial court, in evaluating the demeanor of Mrs. Hydanus as a witness, stated that "her testimony was given in great reluctance and carefully guarded. Many times the court felt that a more honest person would be much more descriptive." Judge FLOM went on to conclude that portions of her testimony were incredible. We find no reason to supplant the trial court's negative reaction to Mrs. Hydanus' testimony. Perhaps this is the type of individual that John Webster had in mind when he wrote, over three hundred years ago:
"When women go to Law, the Devil is full of Business."
— The Devil's Law-Case (1619).It is obvious that the proposed will itself reflects a result which might be attributable to undue influence. Although Mrs. Culver left four brothers and three sisters who survived her, as well as a large number of nephews and nieces, the provisions of the will cut off all but a very few of her relatives with one dollar. The estate was approximately $30,000, yet no blood relative received more than $300. There were two charitable bequests of $1,000 each, but it is undeniable that the transfer of the residue to Mrs. Hydanus was a remarkable and unnatural bequest which raised a red flag of warning.
The appellant has raised a procedural objection with reference to the finding of insane delusions. This contention on the part of the appellant is based upon the fact that the objections to the admission of the will to probate did not specifically assert the claim that Mrs. Culver had insane delusions. However, the objections did allege that the decedent was not of sound mind and did not have sufficient mental capability to make a will.
The medical testimony in this case, together with the details of Mrs. Culver's bizarre demeanor, warranted the trial court's conclusion regarding insane delusions, and we find no merit to the contention of surprise advanced by the appellant. Mrs. Culver's protestations that her brothers and sisters were stealing from her might reasonably be attributable to the paranoia which Dr. Straughn observed a few months after the execution of the will. The trial judge concluded that Mrs. Culver had an insane delusion that nobody cared for her and that people stole from her. She claimed that her brothers were wastrels who would dissipate anything she might bequeath to them. The finding that Mrs. Culver executed her will under these delusions is appropriate upon this record.
The trial judge's conclusions that Mrs. Culver's family was normally solicitous of her and cared for her when she was sick are also warranted. Will of Riemer (1957), 2 Wis.2d 16, 85 N.W.2d 804. We find no error.
By the Court. — Order affirmed.