Opinion
March 9, 1960 —
April 5, 1960.
APPEAL from a judgment of the county court of Milwaukee county: RUDOLPH J. MUDROCH, judge. Affirmed.
For the appellant there was a brief and oral argument by John H. Ames of Milwaukee.
For the respondent there was a brief and oral argument by Ward Dunphy of Milwaukee.
The proceeding is one by the administrator with the will annexed of John Fillar, deceased, to recover assets of the testator, alleged to have been conveyed by the testator before his death to George Fillar, a son of testator, without adequate consideration and procured by the undue influence of George upon his father John. The county court found that the transfer of assets during John's lifetime to George was brought about by undue influence. The judgment was in favor of the estate of John Fillar against George Fillar in the amount of $5,830.33. George Fillar has appealed.
John Fillar was born in Poland in about the year 1870. He came to the United States in 1900 or soon after, where he worked as a laborer until 1927. His eye was injured at that time and he did not work again. Thereafter he lived in retirement with his wife and his daughter, Phyllis. The wife died in 1928 or 1929, after which Phyllis maintained a home for him as long as Phyllis lived. Phyllis became mortally ill in 1956 and another daughter, Michaeline Hoerig, and her husband moved into the home to care for Phyllis and for John. Phyllis died in July, 1956. Michaeline continued to keep up the home for John, in return for which John paid Michaeline $60 per month, out of his social-security payments. Social security was his only income.
Phyllis died intestate. A family conference agreed that Theodore, one of John's children, should be administrator and the county court made the appointment. George, another son, knew that John was sole heir of Phyllis, and quickly showed impatience at what George considered was a delay in assigning the estate to John. George frequently complained about this to Theodore and expressed dissatisfaction with Theodore's administration, and he asked to be substituted for Theodore. George told Theodore that he had engaged an attorney to procure such a change but if the attempt was ever made it did not succeed.
Meanwhile, John lived in the old home, now occupied by John's daughter Michaeline and her husband, Mr. Hoerig. George called frequently upon his father, John, — took him to George's home and took him to church. In the course of such outings George took his father to taverns to which Michaeline and her husband objected because they alleged that when George brought John home, John would be drunk and in that state was hard to control. The objections became so emphatic in May, 1957, that fisticuffs resulted between George and Mr. Hoerig causing damage to Michaeline's furniture. John was asleep when the row began but waked up and saw Hoerig and Michaeline belaboring George. The Hoerig displeasure and its cause continued and on July 28, 1957, George took John into his own home to live. The testimony conflicts, whether the Hoerigs asked George to take his father away or whether John or George requested the change of residence. At any rate, for the rest of his life John lived in George's home.
On August 8, 1957, George called a Mr. Young, a capable and ethical lawyer, to ask Mr. Young to draw John's will. George told Mr. Young that John could not speak English. Mr. Young could not speak or understand Polish and he told George that an interpreter would be necessary. The will conference was held at George's home where John was in bed. The Reverend Edwin Peksa, who had known John for many years, came there at George's request to interpret. Mr. Young directed George and his wife to leave the house while the conference between the testator, the attorney, and the interpreter took place. Through the interpreter, Mr. Young ascertained that John wanted to leave his entire estate to George because, as John told the interpreter, George was the only one who cared for him, his other children neglected him, and George was paying the bills for John's doctor and hospital, which John incurred just before he came to live with George. Less than two weeks before the will conference, John had been living with Michaeline, and others of his children were calling upon him almost daily. The receipt for the hospital bill shows the bill was paid by Theodore.
Mr. Young asked John if he had other children and, on learning of the others, Mr. Young asked if John really wanted to make no provision for the others. After some conversation and some thought, John decided that he would first leave $1,000 to George and then divide the remainder of his property among his surviving children, including George. The will was so drawn and later in the day was executed.
On October 10, 1957, Theodore, the administrator of Phyllis' estate, delivered to John $5,414.43 as distribution in full settlement of the estate. John deposited $2,400 in one savings and loan association in the names of John or George Fillar. John deposited $3,000 in another.
In early December, 1957, George called Mr. Young on the phone to say that John now wanted to give all his property to George in return for a promise that George would support John for John's life. Mr. Young would not draft such an instrument at George's request but Mr. Young said he would do so if Father Peksa would talk with John and then tell Mr. Young what it was that John wanted. Soon afterward George and John came to Father Peksa's home and conferred with the priest, after which Father Peksa informed Mr. Young that John wanted a simple agreement whereby, in consideration of George's promise to support John for life in George's home, John would convey to George all the property which John then had. The mortality tables show John's expectancy was 2.18 years. In court Father Peksa testified that John was disturbed because George owed a mortgage debt on his home. After Father Peksa reported to Mr. Young, Young drew such an agreement and mailed an original and a copy to George. Mr. Young did not see either of the parties.
On December 6, 1957, George took his father, John, to a notary, where John and George signed the contract. The notary took their acknowledgments and George's sister-in-law and the notary signed as witnesses.
On the same day George took his father to the offices of the two savings associations. There John withdrew $2,000 and $3,000 from the respective accounts. They went then to the home of George's wife's parents. Those people had a mortgage of $7,000 on George's home. The mortgage was not due and was not in default but John and/or George paid these amounts as a part payment on principal. Their receipt was given to George and it named him as the payor. John's other children knew nothing about this transaction at this time or earlier.
On May 28, 1958, John died at George's home. At that time the entire balances in the savings accounts had been withdrawn and used by George or deposited in George's name alone.
John also owned a policy of insurance on his life issued to John's estate as beneficiary. On June 17, 1958, Mr. Young wrote to the insurance company that John had died testate but that he left no estate and consequently the will would not be offered for probate and the company should deliver the proceeds of the policy to the funeral home which provided John's burial. Mr. Young sent copies of that letter to all John's children. Knowing that John had so recently inherited a substantial estate from his daughter, Phyllis, John's children, other than George, wanted to know what had become of the inheritance. Theodore procured John's will, offered it for probate, and the will was admitted. The will named George to be executor but he declined to act and Theodore was appointed administrator with the will annexed. As such, Theodore began the present proceeding by petition alleging that between October 16, 1957, and February 6, 1958, John had deposited $5,830.33 in savings and loan associations in Milwaukee and that subsequently George had obtained possession and control of such sums, which the petition alleges are assets of John's estate. The county court determined that George had obtained this property from John by exercising undue influence upon John, whereupon the court entered judgment ordering George to pay that amount to John Fillar's estate.
Other facts will be given in the opinion.
The present proceeding to discover assets of a deceased person and to procure from the county court an appropriate order when such a discovery is made is authorized by sec. 312.06, Stats.
By a finding of ultimate fact (finding 18) the county court determined:
"(18) That George Fillar exercised undue influence upon his father, John Fillar, in securing the sum of $5,830.33 from said John Fillar and that said sum is an asset of the estate of John Fillar, deceased."
The judgment ordered George Fillar to make restitution of $5,830.33 to the estate of John Fillar. George Fillar appeals, contending that the evidence does not sustain such finding 18 nor sustain the detailed findings of fact of the elements necessary to a determination that undue influence has been practiced.
The usual situation presented in actions grounded on undue influence involves wills alleged to be so procured, and the principles to be applied in the determination of undue-influence cases are generally to be found in will controversies, but conveyances inter vivos are subject to the same legal principles as those stated in will cases. Thus conveyances inter vivos may be set aside when procured by undue influence as in Davis v. Dean (1886), 66 Wis. 100, 26 N.W. 737; Cole v. Getzinger (1897), 96 Wis. 559, 572, 71 N.W. 75; Doyle v. Welch (1898), 100 Wis. 24, 75 N.W. 400; Estate of Larsen (1959), 7 Wis.2d 263, 96 N.W.2d 489.
In Reimer v. Reimer (1959), 7 Wis.2d 146, 96 N.W.2d 375, we said, as we have often said before, findings of fact by a trial court are not to be set aside unless they are contrary to the great weight and clear preponderance of the evidence and where there is a dispute in the testimony the trier of the facts is the judge of the weight and credibility to be accorded to the testimony of the witnesses. In Weber v. Kole (1959), 7 Wis.2d 107, 95 N.W.2d 784, we expressed the same rule and added that it is not sufficient for reversal that a contrary finding might have been made with evidence in its support. Most recently in Will of Freitag (1960), 9 Wis.2d 315, 101 N.W.2d 108, an undue-influence case, this court held that a finding of fact by the trial court may not be disturbed on appeal unless contrary to the great weight and clear preponderance of the evidence and the elements of influence must be proved by clear, satisfactory, and convincing evidence. In such a case the findings of the trial court, its interpretation of the facts, and its determination of the credibility of the witnesses are of great importance on appeal. Proof of undue influence or fraud is usually found as an inference from other facts, generally circumstantial, which may be sufficient to meet the required burden of proof. Id.
". . . it is the established rule in this state that in will cases fraud or undue influence must be established by clear, convincing, and satisfactory evidence which means something more than a mere preponderance of evidence. . . ." Will of Faulks (1945), 246 Wis. 319, 344, 17 N.W.2d 423 and we see no difference in the quantum or quality of proof to be required in order to establish undue influence in conveyances inter vivos. Estate of Larsen, supra.
In Boardman v. Lorentzen (1914), 155 Wis. 566, 145 N.W. 750, the late and learned Mr. Justice MARSHALL expressed the degree of proof to be required in such cases. Since that justice, himself, wrote the syllabus to the reported case it is especially authoritative and from it we quote:
"1. He who obtains property by will or otherwise through undue influence or consciously taking advantage of incompetency of the owner, commits a fraud of most-serious character.
"2. The common rule as to certainty of the existence of facts constituting fraud, applies, emphatically, in case of the wrong being that of obtaining property by undue influence or taking advantage of incompetency of the owner — such facts are required to be established by clear and satisfactory evidence.
"3. In a controversy as to whether property was obtained by undue influence, there is an evidentiary presumption in favor of the person charged, the same as in all cases sounding in fraud, that he did not perpetrate the wrong.
"4. The charge of obtaining property by undue influence may be circumstantially, prima facie, established; but that requires these essentials: Proof of a subject unquestionably susceptible to undue influence and clear and satisfactory evidence of opportunity to exercise such influence, a disposition to exercise such influence, and indication that it was in fact exercised.
"5. Upon a prima facie case of undue influence having been circumstantially or otherwise established, there is no shifting of the burden of proof upon the accused more than in any other case where plaintiff's evidence, unexplained or uncontradicted, would entitle him to judgment.
"6. In case of a charge of obtaining property by undue influence, prima facie or otherwise established, the defendant must meet such prima facie case to such extent, at least, that there is no longer clear and satisfactory proof of the facts constituting the charge of fraud."
Amplifying paragraph 6 of the syllabus, the body of the opinion, at pages 571 and 572, is as follows:
"It is unfortunate that trial courts now and then, cling, seemingly, to the idea of the shifting of the burden of proof in such cases, and in that way take a wrong view of the evidence. There is no more shifting of the burden of proof in this class of cases than in any ordinary case where the plaintiff by evidence in chief succeeds in making out a prima facie case. The burden of proof rests with him from the beginning to the end. The only distinguishing characteristic of the particular class is this: The court has held that some circumstances are sufficient to so lift the burden as to call for rebuttal. But all the defendant need then do is to produce sufficient evidence to so weaken plaintiff's case, that the circumstantial and other evidence in his behalf no longer establishes the fraud charged with the requisite clearness to warrant a decision in his favor. That is to say, a prima facie case, circumstantially made against the defendant, does not require him, in order to defeat it, to prove affirmatively that the act challenged was free from any fatal taint, as if he were the plaintiff holding the burden of proof and required to so establish facts. The charge against the defendant in such a case as this, in effect, accuses him of having perpetrated a fraud of a serious nature. There is a strong presumption in his favor against such wrongdoing, which persists to the end of the litigation unless overcome by circumstances inconsistent therewith, established by clear and satisfactory evidence. [Case cited.]"
In Will of Stanley (1937), 226 Wis. 354, 360, 276 N.W. 353, we specified again the four elements necessary to establish undue influence, and we added:
". . . where three of the elements are satisfactorily proven, very little evidence of the fourth is required."
These elements have been recognized as required in the late cases of Will of Winnemann (1956), 272 Wis. 643, 76 N.W.2d 616; Will of Dobson (1951), 258 Wis. 587, 46 N.W.2d 758; and Estate of Fuller (1957), 275 Wis. 1, 8, 81 N.W.2d 64.
A recent study of the subject was expressed in Will of Freitag, supra, to which we have already referred, and which we quote (pp. 317, 318):
"While these elements must be proved by clear, satisfactory, and convincing evidence, it was pointed out in Estate of Larsen, supra, that in most cases proof of undue influence may and usually does rest solely upon circumstantial evidence. The nature and purpose of undue influence is such that it is usually exercised under cover or in secret with little or no opportunity for the presence of disinterested parties. In Will of Ehlke, supra, we stated (p. 121): `. . . undue influence may rest and usually does rest wholly upon circumstantial evidence.' In Will of Leisch, supra, we stated (p. 648): `The proof of undue influence generally rests in circumstantial evidence.' In recognition of the difficulty in proving undue influence an additional rule is applicable that when three of the four elements are established by the required proof, only slight evidence as to the fourth element is necessary to prove its existence. [Cases cited.]"
See also Will of Quam, ante, p. 21, 102 N.W.2d 217.
Three of the elements necessary to establish undue influence in the case at bar are so clear that no time need be spent on reciting the clear, satisfactory, and convincing evidence in their support, other than to refer the reader to the statement of facts preceding the opinion. These elements, expressed in findings 16, 17, and 18, are that George had a disposition to exercise such influence, that he had the opportunity to exercise it, and the result is consistent with having exercised it.
The evidence upon which the court relied in determining the fourth element, that John Fillar was unquestionably susceptible to undue influence at the time he moved into George's home and thereafter, is set forth in the trial court's written decision. In May and June, 1957, John was a patient in Misericordia Hospital. On July 28, 1957, John Fillar left the home of his daughter, Michaeline, Mrs. Hoerig. He was then in a weak condition and required assistance to get from the house to George's automobile. Within two weeks after moving to George's home he decided to bequeath his entire property to George. Although his daughter Michaeline had cared for him for more than two years immediately past, and other members of the family had not neglected him, John had conceived the belief that all but George had deserted him. But after a few minutes of conference with the attorney, John abandoned his plan and gave preference to George over the other children only to the extent of $1,000. A few months more in George's home resulted in the changed plan to make a present conveyance of everything to George. Father Peksa testified that when this conveyance was under consideration, George being present, "his [John's] conversation was his worry about George being in debt, that the mortgage that he had on his home was certainly quite high, and yet he said he can't see why George should be paying so much interest when he himself has money he wants to give George. And, he seemed to have stressed it very clear, that he wanted to give — not to loan or not to borrow or anything of that kind — but rather to give."
The mortgage was not due and was not in default. There is no evidence that George was worried about it. If John, a stranger to the mortgage, was susceptible to such a worry to the extent that he acted upon it, it is a reasonable inference to be drawn by the trial court that John was susceptible to influence, period!
In a trial to the court, the judge is the judge of the credibility of the witnesses and the weight to be given their evidence. There is no suspicion that Father Peksa or Mr. Young were not credible witnesses. Concerning the weight of their evidence, both these witnesses testified that they believed John Fillar to be competent to execute a will on August 8, 1957, and thought him to be a person not susceptible to undue influence. Mr. Young did not know John Fillar until he was called in to draft the will and Mr. Young could not understand the language in which John spoke. In the matter of drawing the contract of December 6th, Mr. Young did not see John at all but merely put into legal form the agreement which Father Peksa told him that John wanted. The weight of Mr. Young's opinion concerning John's resistance to influence must be considered slight. Father Peksa's conclusions are entitled to more weight and he said he did not think John was susceptible to influence. However, the trial court concluded that the facts required a contrary conclusion and the written decision filed by the learned county court shows that the court was well aware of the matters to be proved and the strength of the proof required before a finding of undue influence could be made.
In view of the fact that the three elements — disposition of George to exert undue influence, opportunity to do so, and a result consistent with so doing — all being so emphatically established, practically without question, we consider that the proof of the fourth element, unquestioned susceptibility by John to undue influence by George, meets the lesser burden required of proof in such fourth respect.
By the Court. — Judgment affirmed.