Opinion
June 9, 1948. —
July 1, 1948.
APPEAL from a judgment and order of the county court of La Crosse county: R. V. AHLSTROM, Judge. Affirmed.
For the appellants there was a brief by Johns, Roraff Coleman, and oral argument by Peter G. Pappas and Leonard Roraff, all of La Crosse.
For the respondent there was a brief by Crosby, Schneider Esch of La Crosse, and oral argument by Fred R. Schneider and Frederic W. Crosby.
This is an appeal by Gertrude Pofahl and Lydia Lehrke from a judgment denying probate of the will of Amalia Feeley, and also from an order allowing attorneys' fees and costs to the attorneys for James H. Feeley, contestant.
The proceedings were commenced on March 29, 1947. The judgment was entered on February 8, 1948, and the order was entered on February 17, 1948.
The questions involved in the decision of the county court were as follows: 1. Was the will of Amalia Feeley executed in the manner provided by law? (Answered by trial court in the affirmative.) 2. Was the testatrix at the time of the execution of the will mentally competent to execute a will? (Answered by the trial court in the affirmative.) 3. Was the instrument executed by Amalia Feeley on November 12, 1946, and purporting to be her last will and testament, the result of undue influence having been exerted upon the said Amalia Feeley? (Answered by the trial court in the affirmative.) It is only question 3 which is involved on appeal.
Amalia Lehrke Feeley was born in La Crosse, Wisconsin, on February 13, 1907, and was the daughter of Gustave A. Lehrke and Helen Lehrke. She was married to James Feeley on July 1, 1926, in Chicago, Illinois, and lived with him continuously in that city. There were no children born of this marriage. The support of the parties was provided by James Feeley. Except for two short periods, Mrs. Feeley had no occupation other than as a housewife. She worked as a telephone-switchboard operator for a short time after their marriage, and from March to September, 1946, handled the telephone switchboard and desk work in the Library Plaza apartment hotel in Evanston, Illinois. During their married life Feeley purchased a three-family dwelling at 4202 North Whipple street, Chicago, Illinois, out of his earnings. They lived in one of the apartments in this building. They were happily and contentedly married for a period of approximately twenty years.
On June 23, 1941, Amalia Feeley was injured in a railroad accident while a passenger on the Alton Railroad. Among other injuries, she suffered a skull fracture. Her recovery from such injury was very slow, in that she did not actually leave her bed for approximately two years, but during which time she got up to eat and attend to other personal needs. Following this two-year period she did not leave her home and premises except at very rare intervals, and did not visit with the neighbors except very rarely. Usually she did not respond when spoken to by neighbors. At other times she did respond, but did not carry on a conversation as she changed the subjects abruptly. She complained of pains in her head, dizziness, and weakness. She suffered illusions in that in one instance she thought her cat was locked in an abandoned garage, and at another time gave a postcard to her neighbor to whom it had no meaning, insisting that the postcard belonged to the person to whom it was given. She committed a number of strange acts, such as tearing a mattress to pieces to use the kapok for a mop, removing all of the rugs from the house, stating that there would be no more rugs in her home, and removing a door between rooms, and part of the wall, with an axe. From time to time she suffered from hysteria. She would scream for no apparent reason, lock herself in rooms when awake, and wake up at night screaming. She wrote long, irrelevant, rambling letters to strangers, a cartoonist and a doctor, attempting to make a diagnosis of her own illness. After 1941 she took no interest in her housework, and the household tasks were performed by the husband or were hired done. She neglected her personal cleanliness.
From 1941 to November 3, 1947, she was treated by a number of physicians. The reason so many doctors were called is that she refused to carry out the orders of one doctor, said she did not care for that physician because he did not know his business, and then some other doctor would be consulted. Amalia Feeley was mentally ill as well as physically ill.
During 1946 she developed a cancerous condition and was being treated for it by physicians in Chicago. Early in November, 1946, Helen Lehrke, mother, and Gertrude Pofahl, sister, in La Crosse, and Mr. and Mrs. James Feeley, in Chicago, had a telephone conversation. At that time Helen Lehrke urged Amalia Feeley to come to La Crosse, Wisconsin. As a result of this telephone conversation James Feeley consented to her trip to La Crosse but on the express condition that she receive proper medical treatment by proceeding from La Crosse to the Mayo Clinic at Rochester, Minnesota. James Feeley took his wife to the railroad station on the evening of November 3d, rented a drawing room, and gave the porter instructions to look after her. He called his mother-in-law and told her that she was on the way and requested them to be at the station when she arrived. She was met at the Milwaukee station in La Crosse by her mother, Helen Lehrke, and her sister, Lydia Lehrke, early on the morning of November 4th, and taken to their home at 625 St. Cloud street. Mrs. Feeley was in a weakened physical condition. At all times after November 4, 1946, until Amalia Feeley was hospitalized just before her death, Amalia Feeley stayed at the home of her mother, Helen Lehrke, and sister, Lydia Lehrke, and was in constant association with them and the sister, Gertrude Pofahl, who lived directly across the street from the mother.
The period after Amalia Feeley arrived in La Crosse on November 4, 1946, and to the time of the making of the will, her associations were almost exclusively with Helen Lehrke, Lydia Lehrke, and Gertrude Pofahl.
On November 12, 1946, Gertrude Pofahl, the sister of Amalia Feeley, wanted to go downtown to take care of some of her private affairs such as paying bills and doing shopping. She planned to have her sister, Amalia Feeley, take care of the children but Amalia Feeley expressed a desire to go downtown with Mrs. Pofahl. They took the bus downtown and got off at Fourth and Main. Amalia Feeley stated that she was interested in executing a will and stated that she was unacquainted with any attorneys, and she then asked Gertrude Pofahl as to the name of an attorney. Gertrude Pofahl informed her that she had done business with a certain La Crosse attorney. As a result, the two came to the office of Gertrude Pofahl's attorney. They entered his private office and there were present, Gertrude Pofahl, Amalia Feeley, and the attorney. The attorney was informed that Mrs. Feeley wanted to execute a will. Mrs. Pofahl offered to leave the room but Mrs. Feeley requested that she remain. Mrs. Pofahl was informed by the attorney that it was perfectly satisfactory for her to remain. Mrs. Feeley then began to outline what she wanted in the will. At one time she asked Mrs. Pofahl a question, but Mrs. Pofahl answered that it was not her affair. The instrument, signed by Amalia Feeley and two witnesses, Leonard F. Roraff and Harriet A. Drummond, on November 12, 1946, eight days after Amalia Feeley's arrival in La Crosse, names her sisters, Gertrude Pofahl and Lydia Lehrke, her mother, Helen Lehrke, and nephews, Frederick Lehrke and Roderick Lehrke, sons of her brother, Gustave H. Lehrke, as principal beneficiaries. All of these persons resided in the city of La Crosse, Wisconsin. Two other sisters, Anna Lehrke Justinger and Dorothy Lehrke Strehl, now Adams, who reside away from La Crosse are not mentioned. James Feeley, the husband, was given a conditional life estate in the Chicago residence. He was not informed of the conditions of the will or the making thereof until after the death of the testatrix. After the will was signed, Amalia Feeley delivered it to her mother, Helen Lehrke, who placed it in a strong box at her home and it remained there until after the death of Amalia Feeley.
Amalia Feeley had a bank account at the Exchange Bank in La Crosse. She put this into a joint account with Gertrude Pofahl in or about February, 1947, but the account was not used.
From time to time during his married life, James Feeley had visited at the home of his wife's parents. He had also made trips to La Crosse to aid in the repair and decoration of apartments which his wife had inherited from her father. He spent a considerable period of time there in 1945 on behalf of his wife to adjust a condemnation matter.
On or about November 21, 1946, he came to the home of Helen Lehrke to visit his wife. His relations with his wife were very friendly. Mrs. Lehrke did not want him to stay. She finally ordered him out of the home and told him to get out and stay out, that she did not want him around the house. When he attempted to visit his wife at his mother-in-law's residence again on February 12, 1947, he was refused admittance. There had been no unfriendliness between James and Amalia Feeley. When she arrived in La Crosse on November 4th she sent him a friendly letter which closed with an expression of affection.
Amalia Feeley did not go to Rochester for treatment. After her arrival in La Crosse she was taken by her sister, Gertrude Pofahl, a graduate nurse, to a chiropractor for treatment. The sister insists that she had no knowledge at that time of the ailment or affliction of Amalia Feeley although she testified that she had been shown the growth on the breast of Mrs. Feeley. While in La Crosse in November, James Feeley arranged for medical care for his wife with Dr. Thorolf Gunderson. He did not see Amalia Feeley because he was unable to gain admittance to Helen Lehrke's home, even when accompanied by Dr. David Daley of La Crosse in February, but he remained solicitous of his wife's welfare and kept informed as to her condition by telephone and written communication with her physician.
Amalia Feeley died March 18, 1947, at La Crosse, Wisconsin.
It is well settled by this court that the elements to be proved in order to establish the facts of undue influence are:
"(1) A person unquestionably subject to undue influence;
"(2) Opportunity to exercise such influence and effect the wrongful purpose;
"(3) A disposition to influence unduly for the purpose of procuring an improper favor; and
"(4) A result clearly appearing to be the effect of the supposed influence." Will of Raasch (1939), 230 Wis. 548, 557, 284 N.W. 571, and cases therein cited. Will of Faulks (1945), 246 Wis. 319, 17 N.W.2d 423.
1. A person unquestionably subject to undue influence.
From the facts set out above there is ample evidence to sustain the findings of the trial court that Amalia Feeley was a person unquestionably subject to undue influence. The trial court found:
"7. That Amalia Feeley suffered from a mental illness.
"8. That such mental illness made her subject to undue influence in that she had a greater degree of passivity toward her affairs than a normal person would have.
"9. That Amalia Feeley was seriously ill at all times after June, 1941, and during the period from November 4, 1946, through November 12, 1946, was very sick and in a weak physical condition."
The above findings are supported by the evidence. Will of Keith (1933), 213 Wis. 167, 250 N.W. 382.
2. Opportunity to exercise such influence and effect the wrongful purpose.
The opportunity to exercise such undue influence is admitted.
3. A disposition to influence unduly for the purpose of procuring an improper favor.
The trial court in its findings stated:
"10. That early in November, 1946, at the urging and request of her mother, Helen Lehrke, and her sister, Gertrude Pofahl, she consented to go to La Crosse, ostensibly for the purpose of going from La Crosse to the Mayo Clinic at Rochester, Minnesota, for medical treatment. That in response to such urging Amalia Feeley left Chicago on the night November 3, 1946, and arrived at La Crosse on the morning of November 4, 1946, at which time she was physically and mentally ill.
"11. That on November 4, 1946, Amalia Feeley wrote a friendly and affectionate letter to her husband, James Feeley.
"12. That at all times after November 4, 1946, until Amalia Feeley was hospitalized just before her death, Amalia Feeley stayed at the home of her mother, Helen Lehrke, and sister, Lydia Lehrke, and was in constant association with them and the sister, Gertrude Pofahl, who lived directly across the street from the mother.
"13. That from the period after Amalia Feeley arrived in La Crosse on November 4, 1946, and to the time of the making of the will, her associations were almost exclusively with Helen Lehrke, Lydia Lehrke, and Gertrude Pofahl.
"14. That on November 12, 1946, Amalia Feeley, in the company of her sister, Gertrude Pofahl, went to the office of Leonard F. Roraff, an attorney of La Crosse, Wisconsin. That Amalia Feeley had never before consulted with the said Leonard Roraff, nor was she acquainted with him, but in fact said Leonard Roraff was the attorney for and had been consulted professionally by the sister, Gertrude Pofahl.
"15. That the said Amalia Feeley and Gertrude Pofahl consulted with the said attorney ostensibly for the purpose of preparing Amalia Feeley's will. That Gertrude Pofahl remained constantly in attendance with the attorney and with Amalia Feeley at all times during the discussion of the terms of the will, while the will was being prepared, and while the same was being signed and executed, and at no time did the attorney discuss the terms of the will with Amalia Feeley, away from the presence of Gertrude Pofahl.
"16. That Gertrude Pofahl was the principal beneficiary under the instrument prepared and signed on that day and that the said instrument made bequests to Helen Lehrke, the mother, and Lydia Lehrke, another sister, all of whom lived in La Crosse, Wisconsin, and made no provision for other sisters and the brother of the said Amalia Feeley. The provision for the husband, James Feeley, was a life estate in the home that had been purchased by him out of his earnings.
"17. That the existence of this instrument was kept secret by Helen Lehrke and Gertrude Pofahl until subsequent to Amalia Feeley's death.
"18. That the will was kept by Helen Lehrke shortly after it was made, until after the death of Amalia Feeley.
"19. That subsequent to November 22, 1946, no medical attention was given to Amalia Feeley except such as was arranged for in La Crosse by her husband, James Feeley.
"20. That Helen Lehrke acted to keep James Feeley from access to his wife in that she refused to allow him to come to the home in which Amalia Feeley was staying.
"21. That on the 12th day of February, 1947, when James Feeley attempted to visit his wife, Helen Lehrke shut the door in his face and would not allow him entrance.
"22. That although James Feeley had been a welcome guest at the Lehrke home in La Crosse over the twenty-year period of his married life, after the will was written he was told by Helen Lehrke that he was no longer welcome, and she denied him admittance to the Lehrke home.
"23. That James Feeley had been the loving and affectionate husband of Amalia Feeley for over twenty years.
"24. That the only property which he owned was an undivided one-half interest in joint tenancy with Amalia Feeley in their home in Chicago.
"25. That he is a disabled veteran of World War I.
"26. That he loyally stood by Amalia Feeley during her years of illness and affliction, and provided for her care and comfort."
These are amply sustained by the evidence set forth in the statement of facts.
In this state undue influence is considered as a species of fraud and must be established by clear, convincing, and satisfactory evidence. Will of Schaefer (1932), 207 Wis. 404, 411, 241 N.W. 382, and cases therein cited.
"Undue influence `cannot be presumed from conjecture or suspicion without reasonable and satisfactory proof of facts establishing the contrivance and undue influence.'" Will of Wallace (1928), 197 Wis. 323, 326, 222 N.W. 255.
Here the evidence is clear, convincing, and satisfactory and supports the conclusion that undue influence was exerted on the testatrix.
4. A result clearly appearing to be the effect of the supposed influence.
It is clearly established that Amalia and James Feeley were happily married for twenty years. He purchased out of his earnings the apartment dwelling in which they lived in Chicago. At various times he worked on property owned by the testatrix in La Crosse which she inherited from her father. He was loyal to her during her years of illness and affliction and provided her with care and comfort. When Amalia Feeley arrived in La Crosse on November 4, 1946, she wrote her husband an affectionate letter. Eight days later a will was drawn in which the following provisions were made with reference to her husband:
"First: In the event that I die seized of any interest in the home in which I live located at 4202 North Whipple street, Chicago, Illinois, I give such interest to my nephew Frederick Lehrke, subject to a life estate in favor of my husband James Harold Feeley. In the event that my husband fails to pay the taxes on the said premises and fails to keep the said premises in reasonable repair, then such life estate shall terminate, and such interest shall vest immediately in my nephew Frederick Lehrke."
It is immaterial how testatrix received the title to the home but it is reasonable to assume that without the undue influence the husband would have received considerably more of the estate of the testatrix.
The will then proceeds to divide the property among the La Crosse members of the Lehrke family. The property of the greatest value went to Gertrude Pofahl, second greatest to Helen Lehrke, and that of less value to Lydia Lehrke. Gertrude Pofahl and Lydia Lehrke, the proponents here, were also named in the will as executors and trustees. The two sisters of Amalia Feeley who lived away from La Crosse are completely ignored.
The trial court in its findings of facts stated:
"27. That Gertrude Pofahl exhibited a disposition to dominate the affairs of Amalia Feeley by arranging chiropractic care for her, by recommending the attorney to draw her will, and canceling appointment made by James Feeley for the medical care of his wife. That Helen Lehrke and the Lehrke daughters owned considerable property, and had an extraordinary interest in inheritances and possession of property."
"Where three of the elements are established by clear and satisfactory evidence, slight additional evidence as to the fourth may compel the inference of its existence." Will of Raasch (1939), 230 Wis. 548, 557, 284 N.W. 571, and cases therein cited.
It was held in Will of Keith (1933), 213 Wis. 167, 250 N.W. 382, that unless the findings of the trial court are against the great weight or clear preponderance of the evidence, we are not warranted in disturbing them.
Since the court found that undue influence had been exercised and since findings of trial courts are not to be disturbed on appeal unless they are against the great weight and clear preponderance of the evidence, the judgment of the trial court must be affirmed.
Attorneys' fees.
The order of the trial court allowing attorneys' fees and costs to the attorneys for James H. Feeley is proper because it is in compliance with sec. 324.13(1), Stats.
By the Court. — Judgment and order affirmed.